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Who Gets Custody of the Pet in a Divorce?

What happens to the family pet in divorce cases?

            When a couple divorces, their property will be split in a way that the trial court determines is “just and right”—see Tex. Fam. Code § 7.001 et seq—and custody of their children will be determined on what is in the children’s best interest—see id. at § 153.001 et seq—but where do beloved family pets fit in?

            In Arrington v. Arrington, 613 S.W.2d 565 (Tex. App.—Fort Worth 1981, no writ), the appellate court was clear. “A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law.” Id. at 569. There, the trial court had appointed the ex-wife as Bonnie Lou’s (the couple’s dog) managing conservator, and the ex-husband appealed, wanting shared custody, and not just visitation rights, of the dog. Id. at 566. But the appellate court found “[t]he office of ‘managing conservator’ was created for the benefit of human children, not canine.” Id. at 569. The ex-wife would remain Bonnie Lou’s owner, and the ex-husband would have to be content with visitation. The appellate court “hope[d] that both Arringtons will continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court.” Id.

            Since the trial court cannot create a shared legal custody arrangement for a pet, the court must decide, if the parties can’t agree, who gets ownership. Just like any piece of property, the court will determine whether the pet is community property or the separate property of one of the parties. In Arrington, the evidence showed that the dog was a gift to the ex-wife, therefore, it was easy to determine that Bonnie Lou was the ex-wife’s separate property. IdSee also Tex. Fam. Code §3.001(2). When a pet is the couple’s community property, the court may look at who cares for the animal or who picked out the animal when awarding one party ownership. See Oldenburg v. Oldenburg, No. 02-11-00227-CV (Tex. App.—Fort Worth 2012). In that case, while evidence may have shown that both parties cared for the dog, it was undisputed that the ex-wife originally found the dog at the SPCA and adopted it. Id. As such, the trial court acted within its discretion when it awarded the dog to the ex-wife. Id.

            While there are no special provisions in the family code for the protection of pets, it may be possible to draft a divorce decree, as the couple did in Arrington, that protects each party’s ability to see the pet after the couple divorces. While there can be only one owner of the pet, thankfully for pet owners, Texas precedent allows for language in the decree to protect visitation. Residents in other states are not so lucky. See generally Bennett v. Bennett, 655 So.2d 109, 110-11 (Fla. 1st Dist. Ct. App. 1995) (finding that allowing court to award visitation for pet owners is “unwise” as “courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.”)

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