By Vivian Bolen
Most dog owners in the United States view their dogs as a part of their family, yet legally, dogs are still property.[1] The law has not kept up with the emotional value we attach to companion pets like cats and dogs, and when pet-owning spouses divorce, they are forced to reckon with the law treating their pet as property.[2] This adds emotional injury to an already difficult time for pet owners.
I. Custody of Pets in a Divorce
In family law matters, most states treat the custody of pets during a divorce like any other division of property.[3] In a divorce, the couple can either divide their assets privately outside of court, or the court will step in to decide how their assets should be split, which includes determining which spouse will retain ownership of any pets involved.[4] Pets are treated just like any other type of property owned by the divorcing couple even though they mean so much more to their owners. In recognition of the deep emotional value owners attach to their pets, some courts have started to consider the best interests of the animal during custody disputes over pet ownership.[5]
II. Legal Trends in Pet Custody
Eight states and the District of Columbia have now adopted laws requiring courts to consider a pet’s well-being in custody disputes.[6] In 2017, Alaska became the first state to require judges to consider the well-being of a pet in custody cases, and several other states have since followed suit.[7] While this departure from the typical property analysis to pet custody is still a minority rule,[8] this new focus on a pet’s best interests demonstrates a shift in how pet custody is treated by courts. This shift towards analyzing the pet’s well-being more closely aligns state law with the cultural view of companion pets as members of the family in the U.S.[9]
III. Pet Custody Trends in North Carolina
Despite this shift towards a pet-centric analysis, North Carolina remains in the majority of states and uses a traditional property analysis when determining a pet’s custody.[10]
A. Determining Pet Custody Outside of Court
Even in states like North Carolina where courts do not consider the best interests of the pet, spouses can still take steps to ensure the well-being of their pet remains at the forefront of custody considerations.[11] Couples can make pet custody decisions outside of court through private agreements like pet custody agreements or prenuptial agreements.[12] Pet custody agreements are modeled after child custody agreements and can include who the pet will live with, whether there will be split custody of the pet, and who will be responsible for expenses related to the pet.[13] Prior to marriage, couples can enter into a prenuptial agreements that include clauses detailing what would happen to a pet if they ever chose to get divorced.[14] Keeping the pet custody question of court allows pet owners to have more control over their decision and take their pet’s well-being into account. Although determining pet custody outside of court has its advantages, it also requires a couple to come to an agreement, which may be difficult when both spouses have a deep emotion investment in a pet.[15] When a couple is unable to determine who should retain custody of a pet in a divorce, a court will make the decision for them.[16]
B. Determining Pet Custody in Court
Because pet custody determinations are not mentioned in any North Carolina General Statute, judges are left without any guidance as to how they should analyze who retains ownership of the pet beyond the traditional property analysis for dividing assets.[17] In the absence of any guidelines, North Carolina judges can consider which spouse primarily takes care of the pet, has the best living situation to care for a pet, and can afford the pet’s expenses.[18] While judges have discretion to consider the emotional bond between owners and their pet, they are not required to consider this factor in their analysis.[19] While this discretion might empower some judges to consider the best interests of the pet, spouses must decide whether to agree upon pet custody outside of court or hope that a presiding judge will consider on their pet’s best interests. Prioritizing the best interests of the pet in pet custody disputes is gaining traction in the legal world, and law firms in North Carolina are beginning to acknowledge the importance of considering the pet’s best interests.[20]
While considering the best interests of the pet is becoming more popular, only a handful of states currently use this test.[21] Perhaps one day North Carolina will require the consideration of a pet’s well-being in custody disputes, but in the meantime, spouses who wish to prioritize their pet’s best interests can rely on out-of-court custody determinations.[22]
[1] Stanley Coren, Are Dogs Truly (and Legally) Members of the Family?, Psychology Today (Nov. 17, 2023), https://www.psychologytoday.com/us/blog/canine-corner/202311/could-dogs-be-legally-considered-members-of-the-family.
[2] Id.
[3] Id.
[4] Jonathan Breeden, Who Gets the Dog in the Divorce in North Carolina?, Breeden Law Office (May 15, 2024), https://www.breedenfirm.com/legal-blog/who-gets-the-dog-in-the-divorce/#:~:text=The%20court%20will%20determine%20who,to%20develop%20a%20custody%20agreement.
[5] Id.
[6] Sara Murphy, Who gets the dog in the divorce? Now a judge might decide., Washington Post (Sept. 8, 2024), https://www.washingtonpost.com/home/2024/09/08/pet-custody-cases-on-the-rise/.
[7] Nicole Pallotta, Alaska Legislature Becomes First to Require Consideration of Animals’ Interests in Custody Cases, Animal Legal Defense Fund (Jan. 20, 2017), https://aldf.org/article/alaska-legislature-becomes-first-to-require-consideration-of-animals-interests-in-custody-cases/.
[8] Murphy, supra note 6.
[9] Coren, supra note 1.
[10] N.C. Gen. Stat. § 50-20 (describing how courts should divide assets in a divorce without any mention of pets).
[11] Pet Custody After a Divorce or Separation, Caulder & Valentine Law Firm, https://www.cauldervalentine.com/pet-custody-after-a-divorce [hereinafter Pet Custody]; Untangling Heartstrings: Navigating Pet Custody in North Carolina, Divorces, Collins Family & Elder Law Group (Jan. 8, 2024), https://www.collinsfamilylaw.com/blog/2024/january/untangling-heartstrings-navigating-pet-custodyi/#:~:text=The%20court%20determines%20which%20spouse,the%20pet%20as%20marital%20property [hereinafter Untangling Heartstrings].
[12] Id.
[13] Pet Custody, supra note 11.
[14] Untangling Heartstrings, supra note 11.
[15] See Understanding Pet Custody in North Carolina, Triangle Divorce Lawyers, https://triangledivorcelawyers.com/understanding-pet-custody-in-north-carolina/.
[16] Breeden, supra note 4.
[17] See N.C. Gen. Stat. § 50-20.
[18] Id.
[19] See Breeden, supra note 4.
[20] Untangling Heartstrings, supra note 11; Who Gets the Family Pet in a North Carolina Divorce?, Blood Law, PPLC (Aug. 31, 2023), https://www.blood-law.com/blog/2023/august/who-gets-the-family-pet-in-a-north-carolina-divo/; Pet Custody and Divorce in North Carolina, King Law Offices, https://kinglawoffices.com/family-law/divorce/pet-custody-and-divorce-in-north-carolina/; Rose H. Stout, Is My Beloved Pet Just an Asset to be Divided?, Smith Debnam Narron Drake Saintsing & Myers, L.L.P. (May 29, 2017), https://www.smithdebnamlaw.com/article/beloved-pet-just-asset-divided/.
[21] Murphy, supra note 6.
[22] Pet Custody, supra note 11; Untangling Heartstrings, supra note 11.
