We’re Getting Divorced in California but Who Gets the Dog?

“The signing of AB 2274 makes clear that court must view pet ownership differently than the ownership of a car, for example. By providing clearer direction, courts will award custody on what is best for the animal.” – California Assemblymember Bill Quirk

 

Last year on September 27, 2018, Governor Jerry Brown signed AB 2274 into legislation which entrusts our California court judges to address the proper care for our family animals during a marital dissolution or legal separation. The new bill that went into effect on January 1, 2019, amended the California Family Code differentiating our family animals farther from our average marital community assets such the kitchen pots and pans. California courts judges now have the authority to enter an order for “custody-like” arrangements between spouses and our treasured animals.

 

Thomas and Rebecca lived in Sacramento, California when they adopted their cherished Labradoodle puppy named Tucker. After six years of marriage, they separate and eventually filed for divorce. During their divorce proceedings, Thomas and Rebecca move out of their marital home and into separate houses. One of their main concerns, besides splitting up all shared belongings was, who gets custody, Tucker?

Previously, the courts did not recognize the family animal as a “custody” issue whereas minors of the marriage have specific protections. Tucker was viewed as community property similar to the living room sofa or the Land Rover. The prior law during the dissolution of marriage or legal separation generally required the court to order a judgment upon the parties to make a property division that equally divides the community estate, except as otherwise specified.

 

 

 

For example, if Thomas and Rebecca were finalizing their divorce in 2018, the court would recognize Tucker as a community property issue thus forcing assigned to one party or a stipulation to a shared agreement. If the parties create an understanding between themselves, the animal parenting plan would not be ordered by the court but rather between the parties only. In 2018, the following would have been a typical conversation.  Spouse 1: “you take the sofa, the Land Rover, and the everything in the kitchen, I’ll take Tucker.” Mostly, if there were opposition to the division, a court would be able to order the assignment based on equity. The family animal presented our family law judges with difficulties of granting one party sole ownership of a community property asset, such as our dear Tucker. 

 

2019 and going forward, the new bill authorizes the courts, upon request, to execute an order of sole or joint ownership of Tucker. The judge will take into consideration the care of the family animal and may order a party to care for the family animal before the final determination of ownership during the judgment of a marital dissolution or legal separation. Some factors the court will consider are the schedules of the owners and the ability to care for Tucker. Also, the court could assign a party to pay the fees associated with Tucker’s veterinary bills in need-based situations. AB 2274 provides our furbabies a welcomed protections when our parents are splitting up. 

 

 

Section 2605 is added to the Family Code reads:

2605 (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for the legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal.

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.

(c) For purposes of this section, the following definitions shall apply:

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.

(2) “Pet animal” means any animal that is community property and kept as a household pet.

 

While most households have family animals, California is only the third state to adopt protections for our pets. The courts' procedures consider assigning the interests, well-being or care to our animals during a divorce or legal separation. The only other states to achieve this before California are Alaska in 2016 and Illinois in 2017. What are the other states doing for this important matter?

 

According to Arizona’s ABC 15, Arizona divorce rates have outpaced much of the nation which creates a challenge for which party keeps the family pet. Currently, Arizona law states that pets are treated as property. If the couple didn’t create a ‘puppy prenup’ before marriage, during the divorce proceeding the court will determine a solution based on several factors such as who initially adopted the pet, who paid for the majority of the care, and the best interest of the animal and the family as a whole.

 

 

 

Will California further help Alaska and Illinois push the agenda that family pets need special consideration during divorce and legal separations too? Currently, there are no California cases to reference the new change which keeps family law practitioners in the unknown. Many attorneys are concerned the courts will be bombarded with “pet-custody” issues of contentions which will create a strain on the already backlogged family court calendars. Are we supposed to rely on which furparent provides the “better” care for the animal? It seems like family lawyers are going to have their work cut out for them.

 

So, if Rebecca wants to move out of state with Tucker while Thomas wants to stay in Rocklin with Tucker, they both better consult with their family law attorney to ensure Tucker isn’t left out in the dog house.

 

 

 

Do you have a story to share about your divorce and pet-custody? Send them to kevin@gajplaw.com , we’d love to hear about them.

 

Citation

“AB-2274 Division of Community Property: Pet Animals.” California Legislative Information, 27 Sept. 2018, AB-2274 Division of community property: pet animals.

Fredricks, Fay. “Who Keeps the Pets after a Divorce under AZ Law?” KNXV, 10 Aug. 2018, www.abc15.com/news/state/who-keeps-the-pets-after-a-divorce-under-arizona-law.

 

 

Assembly Bill No. 2274

An act to add Section 2605 to the Family Code, relating to division of community property.

Proposed by Assemblymember Bill Quirk representing the 20th Assembly District

Approved by Governor September 27, 2018.

Filed with Secretary of State September 27, 2018.