Pets And Divorce: Who Will Have Custody Of Rover?

David V. Diggs

When a couple makes the heart-wrenching decision to separate, there are countless issues to address. Not too far down that daunting list, they may ask, “Who will provide a home for the family pet?” If the parties cannot come to an agreement on various issues, including pets, the court may have to make the final decision.

While perhaps antiquated, Maryland law predominantly treats pets as personal property: If divorcing couples cannot agree on who keeps the pet, the initial question is one of ownership. If the family pet is owned by one party, the inquiry ends there. The owner keeps his or her property. If the pet is jointly owned, as many are, the issues become more complicated. Ultimately, if the parties are unable to agree on the jointly titled pet, it will be sold, and the proceeds are split.

In 2010, a Calvert County judge ruled that the divorcing parties were to split custody of the family dog. His decision ordered that each party have the dog for six months at a time. The judge acknowledged that both parties loved the dog equally and that “the only fair thing to do was give each one equal chance to share in the love of the dog.” It is noteworthy that the Prince Frederick couple consented to having the trial judge decide the “custody” of their dog. Absent such agreement, there is no mechanism under Maryland law permitting such an award.

In a 2013 New York case, the trial judge held that “a strict property analysis is neither desirable nor appropriate” for pets in a divorce case and that “the standard to be applied will be what is best for all concerned.” The judge allotted the parties a full day to “prove” not only which individual would benefit from having the dog in his or her life but also why the dog had a better chance of living, prospering, loving and being loved in the care of one spouse over the other.

As the result of a change several years ago to Maryland’s domestic violence statute, a judge may order “temporary possession of any pet” in granting a protective order against an abuser. Issues related to pet custody may also be mediated by divorcing parties.

Pet custody law is similar to that related to child custody, but not as fully developed. Several factors may be considered: who bore the major responsibility of caring for the pet’s need’s (feeding, walking, grooming, taking the animal for veterinary care) when the parties were together? Who spent more time interacting with the pet on a regular basis? Who paid the veterinarian bills?

When divorcing, parties may enter into a separation agreement. As part of this agreement, they may agree on who has possession and custody of a pet. They may agree to share custody. They may set up a visitation schedule, requirements for transportation, the division of costs, etc. The parties may agree upon a veterinarian and decide who will be responsible for the scheduling, transportation and payment. They should also consider laying out a process for an end-of-life decision.

If you are contemplating separation or divorce, with or without pets, you will have many questions. You should consult with an attorney who is familiar with this area of the law and who will assist you in making informed decisions. David Diggs is experienced in all facets of family law. If you need further information regarding this subject, contact us, The Law Office of David V. Diggs LLC, located at 8684 Veterans Highway, Suite 204, in Millersville. Call 410-244-1171 or email david@diggslaw.com.