Shared Custody Arrangements for Pets

Is your pet an object of property ownership or a member of the family? Many consider them the latter, which has given rise to changes in how pet custody is determined in an Illinois divorce. Until recently, pets have been subject to judicial decisions based on their value, and considered property—much like an item of furniture. But for many divorcing couples, the family dog or cat (or bird, horse or iguana) can hold a place more comparable to that of a child, calling for a more subjective and flexible approach to deciding a pet custody agreement and where the pet will live. A new standard is emerging, assessing the well-being and the pet’s best interests, much like the child custody standard: the best interest of the child.

Alaska paved the way with the country’s first legislation outlining this basis for awarding pet custody, and Illinois followed suit. In 2018, pursuant to amendments to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), Illinois courts were empowered to regard companion animals as more than personal property. Under the new law, divorcing couples may request that the court consider their pet custody arrangement in several ways:

• If the parties are filing for a simplified dissolution, they must attest that ownership and responsibility for all companion animals has been recorded in a written agreement.

• If the parties are seeking temporary relief, they may request a temporary allocation for the care and responsibility for a pet, including a shared arrangement. In assessing a temporary arrangement, the court is directed to consider the pet’s well-being.

• If the parties are entering an amicable settlement agreement, they may provide in their agreement for the allocation of sole or joint ownership of a companion animal. Terms of this agreement will be reviewed and incorporated into the court’s order.

• If the parties seek disposition of assets, the court will first assess whether a pet is a marital asset (whether the pet was obtained during the marriage and was not a gift or inheritance, nor paid for with gifted, inherited or previously held separate funds). The court is then directed to allocate sole or joint ownership and responsibility for the pet, based on the well-being of the animal.

To determine the pet’s well-being, Illinois judges are not provided with explicit direction in the law. However, other jurisdictions have outlined factors to consider, including:

• which spouse obtained the pet

• who provides the daily care of the pet

• who handles vet visits

• who makes arrangements for the pet during vacations

• which spouse’s lifestyle is potentially more supportive of pet ownership

Where pet custody becomes contentious, documentation of ownership and vet bills can be helpful. In addition, if there are children in the family, the court may consider where the children will live when considering whether a family pet should accompany them.

One category of animals explicitly not covered by the custody allocation is that of service animals, defined as “an animal trained in obedience and task skills to meet the needs of a person with a disability.” Service animals would clearly belong to the individual requiring the assistive service.

An earlier Illinois rule allowed for judges to make determinations regarding pet custody in cases where domestic violence presented a potential risk to the safety of the animal, and this law is still in effect. If you’re facing a pet custody issue, talk to an experienced Illinois family law attorney for legal advice.

For more information on this area of law, see our overviews of animal law, family law and custody and visitation law.