Who Gets the Kitty?

Erika Kissh


For couples in the United States, the idea of growing one’s family can mean more than just having children, in many instances it can also mean the adoption of “fur-children.” According to the Insurance Information Institute in 2017/2018 there was a reported 85 million families that owned pets in the United States. While that number is heart-warming to think of, if one were to couple it with the fact that roughly 40% of marriages end in divorce, it begs the question “who gets the kitty?”

Pet custody has become a prevalent issue in recent years with the dissolution of marriages across the United States, however, Courts are divided on how best to answer the question of “who gets the kitty?” Some Courts have taken the approach that animals are property, and as such they should be treated like any other household item. While others have taken the approach of viewing the animal more like a child, or “fur-child”, and as such, they take the best interest of the pet/family into consideration when determining custody.

In the past, many Courts viewed pets as property, where the division of the pet was comparable to who would get the television, in more recent year some Courts, with the help of state legislation, have turned to view pets as more sentient creatures rather than objects. This makes sense when you consider that on average pets are often viewed as “members of the family”, and are given toys, beds, celebrate birthdays, and in some instances even provided for with the creation of trusts specifically designed for their care. However, Courts who are forced to handle matters dealing with the custody of an animal, whether viewing animals as property or otherwise, are handed hard tasks. Unlike child custody cases, animals can’t speak or advocate for themselves, as such Judges are forced to make a lot of determinations based on the testimony of the owners and individuals who have interacted with the family in the past. Combining Courts that view animals as property and Judges tasked with such hard decisions, it is no wonder why some Courts have determined that couples are to sell their beloved animals and split the proceeds of the sale. Such determinations are in stark contrast with other court proceedings for pet custody that take years and hundreds of thousands of dollars to determine.

As a way to try and combat some of these issues, some states, such as Alaska and California, have taken pet interests to heart and have created pet custody legislation. As such, the best interest standard is now to be applied to one’s “fur-children” as it would be applied to actual children. With Courts now being able to take into consideration such factors as who feeds, grooms and cares for the pet, as well as the animals overall well-being.  Such legislation is extremely beneficial for animals because, rather than being seen as property and given to one’s “rightful owner” or being sold and having the owners split the proceeds, animals are now being given to the individual who cares for the animal and will best provide for the animal in the future.

With the creation of such legislation as that of Alaska and California, the avoidance of lengthy (and costly) court proceeding and may not be possible, due to the factors the Courts may now consider when deciding custody of the animal, much like a custody battle for a child the facts are not always black and white. While this may make the determination process more burdensome for the Courts, the outcome of those proceedings will be more beneficial to the animals than they would be if they were to be viewed as property. While this is great news from animals in Alaska and California, don’t break out the catnip and champagne quite yet! This is only the tip of the iceberg in terms of pro-animal legislation. Until more states come on board with creating legislation to protect animals from falling victim to nasty custody battle, and more people create prenuptial agreements that state how the custody of their pet will happen should their marriage end, the Courts will continue to handle pet custody cases, and grapple with how best to answer the question of “who gets the kitty?”


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