Who Gets Custody of Pets in a Divorce?

 One of the more common points of contention in the divorce process is who retains custody of family pets? Many people with dogs, cats, or even birds and fish, consider their pets as members of the family. When pets are acquired after two individuals are already married, each party will often have equal attachments to the pet and advocate for their rights as a pet parent. However, is there a legal requirement that ensures each spouse has possession or continued rights to visit a shared pet?

In Texas, pets are not regarded as family members, but rather, are treated as personal property. The legal contention of the issues dates all the way back to 1858 with the Texas Supreme Court case of Howard vs. York [1]. In this case, the highest court of the State established that animals are considered property and that ownership is characterized as either separate property or community property. In 2010, this was reaffirmed by the Austin Court of Appeals [2], stating that pets purchased with a spouse’s separate property money remain the separate property of that spouse.

During a divorce, animals are divided between the husband and wife along with all other property at issue. Only one of the parties will be granted sole custody over a pet in Texas. Conversely, Alaska became the first state to consider the animal’s well-being in 2016, and Illinois passed a similar law in 2018 which requires the court to determine sole or joint ownership over a pet. More recently, in 2021, New York passed a law requiring courts to consider the best interest of a pet during a divorce when determining possession.

For now, the only way to ensure both parties in a suit for divorce in Texas can maintain his or her respective bond with pets is through mutual agreement and creativity. A possession schedule can be created to mirror a shared-custody arrangement, much like what is done with any child who is the subject of the suit.

When contemplating such an agreement with your former spouse or partner, be sure to consider and establish mutual responsibility for your pet’s expenses, such as veterinary care, food, medications, and grooming. If a detailed agreement regarding your pet cannot be achieved, then both parties, and their beloved pet(s), are at the mercy of the trial court to award ownership to one party or the other, along with the rest of the “pots and pans” at issue.

Jenkins & Kamin LLP is one of the most respected family law firms in Texas. The firm is noted for its “team” approach by pairing skilled attorneys, paralegals and other support staff to enhance each client’s experience in difficult life transitions.

In addition to the “team” approach, Jenkins & Kamin, LLP strives to personalize case strategies for each individual client, including identification of every particular legal issue and effective explanation of the law with respect to those issues.  The firm endeavors to achieve a resolution that is appropriate for each client, while aggressively advocating on their behalf when necessary. Having a dedicated and experienced team working with you in any family law matter is of utmost importance to achieve the best result possible.

Jenkins & Kamin LLP represents clients in the following aspects of family law practice: Marital Property Agreements, Divorce, Complex Property Issues, Child Custody & Visitation, Child Support, Parentage, Modifications, Family Law Appeals and Dispute Resolution Alternatives. To learn more about the firm, visit www.jenkinskamin.com or contact one of our offices in the greater Houston area.