Six out of every ten U.S. households own a pet. Almost five out of ten of married couples file for divorce. Consequently, it should be no surprise that a significant percentage of our population faces legal difficulties as to who will keep the family’s furry child when spouses move in to separate residences.
The Traditional View
In Illinois, Courts have historically taken the approach assumed by a majority of jurisdictions throughout the nation, which is to view pets as personal property. Essentially, a dog or a cat was viewed no differently than a television set in the eyes of the law. Judges would not order, nor enforce, pet custody or visitation amongst dueling spouses. Pets would be simply economically allocated and ownership would be awarded to one party’s side of the ledger.
While this callous traditional was expeditious, it no longer comported with the way society views pets. Animals are more like children than they are like furniture. They are sentient beings in need of care and affection. Owners and pets have deep bonds rather than simply some economical value.
2018 Changes to Pet Custody Law
Effective January 1, 2018, Public Act 100-0422 (“the Act”) will alter the Illinois Marriage and Dissolution of Marriage Act to now require state Courts to award custody of a marital companion pet after considering what is in the animal’s best interests.
According to the Act:
“Either party may petition or move for the temporary allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.”
The definition of companion animal is broad. It can include dogs, cats, fish, horses, or any other domestic animal. Not included in the Act are service animals, which are specifically trained to aid their owners with a disability. Also excluded are animals that are pre-marital property, acquired before the time of the marriage and clearly belonging to only one spouse.
Factors the Court May Consider
When deciding whether to award one or both pet parents with custody, the Court may consider factors such as a spouse’s ability to provide basic necessities, who the animal has developed a stronger bond and affinity towards, and which pet parent has the ability to devote the greatest attention to caring for the animal. In the day-to-day sense, things such as who walks the dog, buys the cat food, or cleans the fish tank will be relevant. Overall the Courts will look to who has demonstrated a greater level of ownership and care. Family law practitioners should advise their clients to maintain records of veterinary receipts, training records, and ownership or adoption documentation.
Avoiding the Courtroom
Similar to dealing with parenting time involving children, pet parents can agree to a shared schedule. They may undergo a litigation alternative, such as mediation, in order to work out a mutually agreed upon schedule and list of responsibilities. Parents with children may even want to consider having their pet’s schedule mirror their children’s. This could lead to greater stability, normalcy, and comfort for children shuffling in between two households.
If pet parents can’t agree as to who will obtain sole custody, or how they will divide joint custody, then necessarily the Court must ultimately make the decision.
Preparing Family Law Practitioners
According to the American Academy of Matrimonial Lawyers, pet custody disputes have been on the rise. We do not yet know exactly how pet custody battles will play out in the Courts, but one thing is for certain, practitioners will see an even greater increase in disputes over family pets in the year to come. Attorneys should be prepared to counsel and advise clients who have a family pet as to the recent changes in the law and how these changes may affect the outcome of their divorce.
Marie Sarantakis is the Principal Attorney of Sarantakis Law Group, Ltd. Ms. Sarantakis concentrates her practice in family law. In addition to her work in the courtroom, she is versed in alternative methods of dispute resolution as a mediator and Fellow of the Collaborative Law Institute of Illinois. She was recently recognized by Super Lawyers as a Rising Star, named as one of the Top 10 Family Law Attorneys Under 40 in Illinois by the National Academy of Family Law Attorneys, and featured as a Fellow of the National Association of Distinguished Counsel.
Ms. Sarantakis is active in the legal community and serves as Chair of the American Bar Association Young Lawyers Division Children & the Law Committee, an elected Assembly member and Young Lawyers Division Member of the Illinois State Bar Association, and on the Board of Governors of the West Suburban Bar Association. She also serves as a Young Professionals Board Member of Illinois Legal Aid Online and as an Associate Board Member of the Lawyers Assistance Program of Illinois.
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