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Forget the kids; more and more couples are going to court for custody of pets.
Who gets custody? That's the question being asked in courtrooms across the country, and in many cases, it has nothing to do with kids.
"It's humans fighting with each other, and the animal is just sitting there and trying to, you know, not be part of it," David Favre said.
Be it for a breakup or full-on divorce, couples are increasingly seeking legal counsel for determining who takes custody of their dogs, cats, birds, or even turtles as they part ways.
It's a trend that's been on the rise for decades, playing out in court TV shows and movies, like the scene in "Legally Blonde."
So what's driving these pet custody disputes?
"The problem is the change of the family. There aren't kids to fight over anymore. So many couples choose not to have children. And so the pet, the companion animal, does become the child substitute," Favre said.
David Favre is a professor specializing in animal law at Michigan State University. Similar to disputes over children, he says pets have become a contentious point of control for separating couples.
"Families have gotten smaller, and there are many people who live alone and have an animal and then join up with another human, and that partnership, you know, falls apart. And so they have to hold on to that animal for their own emotional well-being," Favre said.
And Favre is right—the family dynamic in the U.S. is changing.
According to the data collection platform Statista, the average family in the U.S. had 2.44 kids in 1965, whereas families in 2022 averaged roughly 1.94 kids per household.
Meanwhile, Forbes Advisor reports that U.S. households with pets jumped from 56% in 1988 to 66% as of 2023, with millennials making up the largest percentage of pet owners at 33%, followed by Gen X'ers at 25% and Baby Boomers at 24%.
"I remember one time I had a phone call from a woman who said, you know, her life depended upon her getting custody from her husband in a divorce. And I'm sitting there thinking, well, I'm very sorry you feel that way, but I want to know what's the best interest of the animal," Favre said.
Depending on the state you are in, that's a question more and more courts are taking into consideration when reviewing pet custody disputes.
"There have been laws passed in recent years in states like Alaska, California, and Illinois that will specifically direct courts to take into account the interests of the animal when dividing property during a divorce proceeding," Christopher Berry said.
Christopher Berry is a managing attorney at the Animal Legal Defense Fund. And so far in 2023, lawmakers have introduced pieces of legislation in Tennessee and Pennsylvania that would ask judges to consider what's best for the pet. And Berry says more states will likely follow suit.
"There's a disconnect between what is happening in the law a lot of the times and what we feel as families and as a society," Berry said. "But the law in a lot of ways is still holding on to the traditional idea that an animal is no different than a piece of furniture or a tractor, or some other piece of personal property that doesn't have any other value outside of its monetary or market value."
Since pets are still widely considered property, often the person who has the most financial investment will retain custody of the animal—think purchase receipts, vet bills, and training. But that isn't always the best fit for the animal.
So where does that leave couples and, more importantly, pets?
"I started this work out of necessity," Karis Nafte said.
Karis Nafte is a pet custody mediator and animal behavior expert who has spent nearly 30 years working with families and their pets.
She says it is crucial that couples discuss who should keep the pet in the case of a separation from the very beginning—instead of a prenup, it's a 'pet-nup.'
"At that moment, be adult enough to say, 'listen, we need to have one owner for this animal so that if this doesn't work out, we know where the dog is going.' Nobody wants to have that conversation. Nobody likes what that conversation implies," Nafte said.
Nafte says unfortunately, the media's coverage of high-profile celebrities battling over their pets has fueled the idea that pet custody is something that needs to be fought over.
"For me, the sad part about that story is, it sort of pushes the narrative that it should be a fight, that it's okay to fight about it, but it's like normal to fight about it because a famous person did. And that's just a shame, because it doesn't need to be like that. It absolutely doesn't. You shouldn't feel righteous that you should fight about something like that," Nafte said.
As for who should take custody? Nafte says it's important to consider factors like intent, time, and the health needs of the animal.
"People are often, without realizing it, using their dog as a weapon or kind of a bargaining chip between them and their ex. They're either not willing to give the dog up, not because they're that attached to the dog, but because they're not actually ready to say goodbye to their ex," Nafte said. "You have to really look at each dog as an individual. Look at the health, any health issues the dog has. Look at the exercise needs the dogs have, and kind of what does this particular dog need to be happy?"
As for splitting custody, Nafte says, not so fast.
"People need to take a step back and realize that by doing that, they are setting themselves up to be in constant contact with their ex for years going forward. And in my experience, this often becomes unsustainable after a time, whether it's a few months, sometimes a few years," Nafte said.
Looking ahead, Nafte says she expects courts will continue to evolve in how they approach pet custody disputes, and she hopes pet owners will do the same.
"They're not just things, but they're not people either. They're something different. And so, we have to really see them as the species that they are, the breed that they are, but not imagine they're children," Nafte said.
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