The title of this post comes from a line in "Legally Blonde" which is a guilty pleasure of mine.
Custody of a pet can be as contentious as custody of a child, especially when two people purchase or adopt a pet together.
However, the law traditionally treats animals as property. There is no special status for family pets, as loved as they may be. I posted recently on veterinary malpractice. It's the same idea. If there is injury or death, you can only sue for the cost of the pet or the vet bills. You can't sue for pain and suffering. It's loss of, or damage to, property.
Pet custody (more accurately called pet ownership) can be an issue for married couples, unmarried couples, and even roommates.
For divorcing couples, the rule in Illinois is that marital property is divided equitably. Unlike children, the law doesn't include any mention of pet custody and visitation. Technically, the pet should be awarded to one person or the other, much like a car or a couch. For couples or roommates who are not married, they too can have a court decide ownership.
However, before resorting to a lawsuit or court battle over a pet, the two people should try to negotiate and come to an agreement. It's much less expensive and time consuming. If that doesn't work, a neutral third party can help come up with a custody agreement, which can include joint custody, frequent visits, and shared expenses. Most divorce attorneys are familiar with pet custody issues these days. If you already have an attorney, they should be able to help, although it may cost you. I've seen cases drag out for years over a dog.
If you end up in court, it depends on the judge. Some judges recognize that pets are not simply property and will take on pet custody issues. There is no law that says what is relevant in awarding a pet to one person or the other. It's probably a combination of property law and child custody law.
If one spouse owned the pet before the marriage, they may be more likely to get custody. If a child owns a pet, then whoever has custody of the child may get custody of the pet. The same is true if the child has a bond with the pet.
Caretaking probably matters, as well. The person who feeds, walks, and generally takes care of a pet is more likely to get to keep it after a split. Also relevant is who paid the vet bills, bought the food, etc.
The ability to care for the pet in the future is another factor. A comparison of the new living situations may show that a pet is better off one place or the other. Perhaps the person with the more flexible work schedule, or the person who is home more hours of the day, should keep the pet.
The bottom line is that there's no law specifically addressing the issue. So it's up to you, or a judge, and there's a lot of leeway.
If you are getting married or looking to get a pet with a significant other or roommate, plan ahead. Include pet custody details in your prenup. Or get a pet prenup that lays out a plan for what happens to the pet if the relationship ends. It may sound silly, but you're thinking more clearly now that you will be during a break up.
Legal Tip Of The Day from Chicago attorney Stephen Hoffman: If you are in a car accident, aside from getting immediate medical care, take pictures of your car, your body and the accident location. Pictures are certainly worth 1,000 words when you go to court.
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