Pet Custody in California

Most people consider their pet a part of the family, so it’s no surprise there are often disputes about who gets the pet when a couple splits up.

At Mello & Pickering, LLP, we have witnessed numerous clients approach us with trepidation, fearing the potential loss of their beloved companion. The inherent complexities surrounding the legal aspects of pet custody can be confusing and exacerbate anxiety. However, there is a path forward that alleviates these concerns. By equipping oneself with a thorough understanding of the prevailing laws governing pet ownership and enlisting the guidance of a skilled attorney, you can safeguard both your cherished pet and your rights as a responsible pet owner during the divorce process.

In January 2019, a California law transformed our approach to pet custody in divorce cases. This groundbreaking legislation provided judges with the authority to evaluate the welfare and best interests of pets (or companion animals) while making determinations in separation or divorce proceedings. This legal shift was solidified by Governor Jerry Brown when he signed AB 2274.

Prior to AB 2274, California courts typically mandated an equal division of “community property” between disputing parties during divorce proceedings, which encompassed not only material possessions but also pets. Unfortunately, animals were regarded no differently than inanimate objects such as televisions, cars, or furniture.

California was the third state to pass legislation providing guidance to courts regarding the interests, well-being, or care of companion animals in divorce proceedings. California Family Code section 2605 provides:

(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 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.

Cal. Fam. Code § 2605

Custody battles over animals have been on the rise in recent years, reflecting the important role that animals play in people’s lives and families. Although pets are technically property, the newly-enacted law has provided courts with a more defined approach. Consequently, they now have the authority to grant custody based on what is considered to be in the best interest of the pet. Courts can establish shared custody arrangements and, in some cases, may even issue temporary orders assigning the care of the pet to one party until a final determination of ownership is reached. This shift empowers courts to make decisions that prioritize the welfare of the animal while navigating the complexities of pet custody in divorce cases.

What Factors Will Be Considered When Determining the Well Being of the Pet?

When determining pet custody and assessing the welfare of your beloved pet, a judge takes into account several crucial factors. These elements encompass:

• The individual responsible for the pet’s daily care, including feeding, walking, and playtime.
• The party who historically attended veterinary appointments for the pet.
• The registration details of the animal, including ownership documentation.
• The living arrangements and available space of each party to ensure the animal’s proper care.

Previously, pet ownership (custody) was determined by who paid for the animal or paid its adoption fees. Courts had the ability to assess the best interest of the pet but had limited guidance on how to do so. With new laws in place, ownership is a factor but it not the only factor considered. Additionally, it is worth noting that your emotional well-being can also be taken into consideration when establishing pet custody during divorce proceedings. However, it is important to note that courts evaluate each situation on a case-by-case basis considering the unique circumstances and balancing the factors to reach a decision.

Should You Hire a Divorce Attorney?

Even in the most amicable divorce proceedings, seeking the expertise of a divorce lawyer to review your agreement can provide crucial protection for your rights in both the short and long term. Amidst the complex process of divorce, determining pet custody stands as one of the numerous issues that demand careful navigation. Obtaining the services of an experienced divorce attorney not only grants you guidance throughout the process but also guarantees your rights and interests will be protected.

Unless done right you cannot assume that the court system will automatically consider the relevant information and grant you custody of your pet, unless approached correctly. An experienced divorce lawyer possesses the ability to ensure that the court evaluates all relevant details surrounding the case, taking into account not only the well-being of your pet but also your emotional well-being.

At Mello & Pickering, LLP, we understand the gravity of what is at stake in your case. By entrusting us with your legal representation, you can rest assured that we will go to great lengths to protect your interests and pursue every available avenue to secure a favorable outcome for you and your pet. For your consultation, call (408) 288-7800 or email mpllp@sjfamilylaw.com.