There is evidence to suggest that many owners see their pet as a family member. It is unsurprising then that family lawyers are being asked to advise on pet custody matters. Since pets are personal property, such disputes fall within divorce financial proceedings. An examination of reported cases in the USA and Israel show that two distinct tests have emerged to resolve pet custody disputes: first, the application of pure property law principles and secondly, the application of a ‘best interests of the animal’ test. The cases show that while the courts are quick to emphasise the property status of pets, apply the property law test, and dismiss the ‘best interests of the animal’ test, nevertheless other factors are not without influence in the courts’ decisions. The unique nature of pets as living and sentient property gives rise to two factors in particular: the emotional bonds that exist between the pet and carers and the interest the pet has in avoiding physical harm. It is advocated that these factors should be relevant considerations and may prevail over property law considerations. The extensive literature on children’s rights and the ‘best interest of the child’ test is harnessed to support and justify a new approach to resolving pet custody disputes – one which recognises the unique nature of this living and sentient property.
Deborah Rook, Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law. International Journal of Law Policy and the Family (2014) 28 (2): 177-193, doi: 10.1093/lawfam/ebu004.