For the love of Fifi: What happens to the family pet when parties divorce

An apparent case of first impression came before the Illinois appellate courts last year. In In re Marriage of Enders and Baker, 2015 Ill. App. (1^st) 142435, the parties were in the midst of their divorce proceedings when the husband, who had moved out of the marital residence, filed a motion for temporary visitation with their two dogs named Grace and Roxy. The Court awarded the husband temporary visitation on alternating weekends, akin to a non-custodial parent’s visitation with human children.  One of the questions that arose at trial was the extent of the parties’ relationship with the dogs.  When the trial court awarded the dogs to the wife and denied the husband any rights to visitation, the husband appealed under the guise that ordering visitation would be in the pets’ best interest. The appellate court looked to other states’ decisions regarding pet visitation in divorces and ultimately noted that the wife, under the Animal Control Act, was the dogs’ owner because they were under her sole care and she acted as their custodian when the husband vacated the residence.

Iowa, in the meantime, had already addressed such an issue in the case, In re Marriage of Stewart, 356 N.W.2d 611 (Iowa Ct. App. 1984). In Stewart, the husband gave the wife a dog for Christmas, but when the parties separated, the dog remained with the husband, who “often accompanies [the husband] to the office and spends a substantial portion of the day with [the husband].” The trial court held that “custody” of the dog should be with the husband. The Appellate Court, however, disagreed with the term “custody” as used by the trial court, noting that “a dog is personal property and while courts should not put a family pet in a position of being abused or uncared for, we do not have to determine the best interests of a pet.” The Court ultimately affirmed the trial court’s decision to award the pet to the husband after considering the overall division of marital property.

Except that the Stewart Court – and to some extent, the Enders Court – did not appear to treat the dog as mere personal property. In Stewart, the dog was apparently given to the wife by the husband as a Christmas gift, though the opinion noted that the dog spent a good deal of time with the husband.  If the Court were to truly treat the dog as mere property, it probably should have ruled that the dog was a gift to the wife and as such, was her property.  In this case, therefore, the Court may have inadvertently analyzed precisely what it said it would not do – determine the best interest of a pet.  In affirming the trial court’s decision to award the dog to the husband, even though it had been a gift to the wife, the trial court seemingly determined that the husband should be awarded the dog because doing so would result in consistency and stability for the dog.

Some animal rights advocates may argue that such a steadfast comparison of pets to common property, like couches and cars, denies that pets are living and breathing beings to which owners form emotional attachments and is precisely the reason why laws like the Animal Control Act in Illinois or anti animal cruelty laws in Iowa exist.

On the other hand, a strong argument that disfavors awarding humans visitation over their pets in a divorce is that in cases where one of the spouses was emotionally, mentally, or physically abusive, an order that seemingly perpetuates the abuse – by tying the victim to his or her batterer, by way of requiring regular visitation of the pet with the spouse’s batterer – is also clearly socially problematic. According to this article, for example, 48% of domestic abuse victims with pets refuse to leave or delay leaving in order to keep their pets safe. And in addition, what is the Court to do when the pet seemingly no longer wishes to have visitation with his non-custodial human? Is the custodial ex-spouse now in contempt and will this snowball into the appointment of a guardian ad litem for the pet? 

Fortunately, in almost all jurisdictions, there exists no legislative authority for family law courts to supervise parties in enforcing visitation of a pet. When parties divorce, the goal is generally to disentangle their lives and their assets and debts so that they no longer have to be in contact over such things like couches and cars.  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Mary Zambreno