Pet Custody Laws in a Colorado Divorce

Pets in a divorce, division of cats & dogs

Who gets the pets in a divorce? In Colorado, pets are property, not children, so are not subject to custody orders in a divorce. Yet a 2014 survey from the American Academy of Matrimonial Lawyers noted that disputes over pets were on the increase, with 88% fighting over dogs, and cats were a distant second at 5%. 

No doubt about it - pets are very important to a lot of families, and often regarded as an integral part of the family. For couples with kids, child custody arrangements mean the kids will also be separated from their pets. And couples without kids may well think of their cats or dogs as quasi-children.

America is a pet nation. Americans spend about $60bn per year on their pets, and recent surveys showing that almost 2/3 of households have pets (which includes not just cats & dogs, but fish, birds, reptiles, etc). Most of those households consider their pets to be a member of the family, analogous to children.

We get it - most of us at Graham.Law have pets as well, and would hate to lose them.

Pets are Property in Colorado

But the law doesn't get it. There is no Colorado law setting forth a standard on how to treat pets in a divorce proceeding. Period. No statute, and no reported cases.

The majority rule in the U.S., including Colorado, is summed up in the words of one treatise: “At common law, people have a martial right to property and this includes the right to ownership, control and absolute possession of pets.” Even though some municipalities may enact companionship ordinances which refer to pet owners as “guardians,” divorce is a state issue, not a local one, and those ordinances have no impact on the outcome of a divorce.

A 2016 decision from the Queen’s Bench for Saskatchewan in Canada opened with these words, evidencing an understanding of the special status pets enjoy: “Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.” Henderson v. Henderson, 2016 SKQB 282.

After this encouraging start, the judge then spent 15 pages analyzing the law to support a less compassionate conclusion: “My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.” (Emphasis added).

Pets are not children to the court, but just another item in dispute, albeit a very sentimental issue which generates strong feelings. In other words, a pet is chattel, property that is to be divided as part of the marital estate, along with retirement accounts, furniture and photographs. Since the judge lacks the authority to order a pet visitation schedule, you're not going to get a canine custody hearing.

And a judge has no practical way of knowing which spouse “deserves” the pet. I’ve heard anecdotally of a case where a judge, in an effort to find out which spouse the pet was more attached to, summoned the dog into his courtroom to see which one the dog ran to first. And in some versions of the story, the spouse who won had cheated by having bacon in his pocket. I’m guessing that this is just an urban myth.

More credibly, there have been cases where judges, with an abundance of time and patience, have allowed a little time for evidence of who picked out the pet, which spouse primarily took care of the pet, i.e. who took the pet to the vet, groomers, etc. And other times, when the children reside primarily with one parent, the judge may well award the family pet the house where the children live.

Pet Custody Laws in Other States?

In January 2017, Alaska made headlines with a law to treat pets more like children, the first in the nation to do so. House Bill 147 amended Alaska law, and now provides:

  • A protective order can include an order for care of a pet, “regardless of the ownership”, and also allocate the costs of caring for the pet.
  • The dissolution statute requires the court to adjudicate the “ownership or joint ownership of an animal, taking into consideration the well-being of the animal.”

Illinois enacted pet custody a year later with Public Act 100-0422, providing: "Either party may petition or move for the temporary allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal."

California followed in January 2019, when a AB-2274 came into effect which provides: "the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal."

These laws are still too new for anyone to predict how they will impact cases. While a full-blown cat or dog custody case is unlikely, it sounds like courts will at least hear evidence as to which spouse the pet is better off with. While American judges recognize that pets have a special status, they are already overwhelmed with child custody and other disputes in domestic relations proceedings, so it is hard to see how they can find sufficient docket time to consider disputes over pet custody.

Solutions for Pet Custody in Colorado

In the absence of a court granting a pet custody hearing, what can spouses with pet disputes do? Two options come to mind:

  • An agreement. Spouses can agree on pet care arrangements, just like with children, and include in a separation agreement a specific schedule for the pets, who pays vet and other bills, etc. While rare, such agreements are not unprecedented.
  • Arbitration. This too requires the couple to agree - not on who gets the pets, but to submit the issue to binding arbitration. The arbitrator can consider testimony from family, friends and neighbors, review documents, and even observe the pet interact with both spouses, if the arbitrator was so inclined.

Trusts for Pets

Although not directly related to family law, it is worth pointing out that a different statute somewhat recognizes that pets have a special place in our heart, and a special legal status. C.R.S. 15-11-901 allows a person to set up a trust for his/her pet - seriously!

The trust can last as long as any pet is alive, after which the trust balance goes to the remainder beneficiary. While the trust is in effect, the trust can specify that the income or the corpus of the trust can only be spent for the benefit of the pets. And pursuant to C.R.S. 15-11-901(3)(d), the trust provisions can be enforced by person caring for the pets, or any third party designated in the trust.

Graham.Law does not draft trusts, but if you are interested in protecting the pets after death, we recommend you consult with an estate planning attorney.

More Information

An ABA article, The “De-Chattelization” Of Companion Animals Through Family Law Legislation: How Alaska’s H.R. 147 Has Dismantled The Traditional Property Law View Of Pets, by Morgan Chandler.

Do You Need a Pet Custody Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulments to military divorce issues. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

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