Animal Law Update

California’s New “Pet Custody” Law Differentiates Companion Animals from Other Types of Property

By Nicole Pallotta, Academic Outreach Manager

“The signing of AB 2274 makes clear that courts must view pet ownership differently than the ownership of a car, for example. By providing clearer direction, courts will award custody on what is best for the animal.” –California Assemblymember Bill Quirk

On September 27, 2018, Governor Jerry Brown signed AB 2274, which empowers California courts to take into consideration “the care of the pet animal” in cases of marital dissolution or legal separation.

Previously, California law generally required that courts divide all “community property” – property acquired during the marriage, including companion animals – equally between the disputing parties. Animals were treated no differently than inanimate objects like televisions, cars, and furniture.

AB 2274 amends California’s Family Code to differentiate companion animals from these other types of marital assets. Under the new law, which goes into effect on January 1, 2019, courts will also be allowed to create “shared custody” agreements for companion animals, as well as to enter an order requiring a party to care for the animal prior to the final determination of ownership.

California is the third state to pass legislation providing guidance to courts regarding the interests, well-being, or care of companion animals in divorce proceedings. Alaska and Illinois passed similar legislation in 2016 and 2017, respectively.

In states without statutory language addressing this issue, rightful ownership of a companion animal is typically determined according to who paid the animal’s adoption or purchase fee. Prior to the passage of AB 2274, judges had discretion to create alternate arrangements transcending a strict property analysis — for example, authorizing visitation agreements or using a “best interests” standard akin to what is used in child custody cases. However, the law provided no guidance in this regard.

Though still classified as personal property, California’s new law aligns with the way most people view their animal companions — as family members — and acknowledges that animals are fundamentally distinct from other forms of property. Of the need for the Family Code to be amended, Assemblymember Bill Quirk, sponsor of AB 2274, said:

“There is nothing in statute directing judges to treat a pet differently from any other type of property we own. However, as a proud parent of a rescued dog, I know that owners view their pets as more than just property. They are part of our family, and their care needs to be a consideration during divorce proceedings.”

The original version of AB 2274 was worded more strongly to address the “well-being” (rather than “care”) of the animal and to “require” (rather than “authorize”) courts to take this into account, with the imperative “shall” being replaced in the final version with the more permissive “may.”

The comparable legislation enacted in Alaska and Illinois both refer to an animal’s “well-being.” Illinois’s statute stipulates the court “shall” take into consideration the well-being of the companion animal, and Alaska’s reads that in divorce judgments “the court may provide if an animal is owned, for the ownership or joint ownership of the animal, considering the well-being of the animal,” which legal experts have interpreted as being a directive rather than merely suggestive.

These changes to the final bill notwithstanding, California’s law provides important guidance distinguishing companion animals from other forms of property, where before there was none. California is the largest state to pass such legislation, and likely will not be the last.

Custody battles over animals have been on the rise in recent years, reflecting the important role that animals play in people’s lives and families. A 2014 survey by the American Academy of Matrimonial Lawyers found that more than 25 percent of respondents had seen an increase in pet custody cases during the previous five years, and 22 percent noted that courts are more frequently allowing these cases.

Even in states without laws specifically addressing companion animals in divorce proceedings, a growing number of courts have acknowledged that people have a special relationship with animals that sets them apart from other types of property. For the last two decades, the Animal Legal Defense Fund has filed amicus briefs in custody cases asking courts to consider the best interests of the animal. In these briefs, we do not favor either side in the dispute, but rather argue that courts have the authority to treat animals more like dependents than property, and should do so. As Matthew Liebman, Animal Legal Defense Fund Director of Litigation, has written:

“Courts routinely make custody decisions for children and other dependents after weighing evidence about which home will provide the best life for them. The determination is made by identifying and then evaluating the relevant factors in an effort to promote the individual’s physical and mental well-being to the greatest extent possible. Virtually identical concerns and principles are present in custody cases involving companion animals.”

Attorneys working on a custody case involving an animal can request an amicus brief from the Animal Legal Defense Fund.

California was ranked third in the nation for its animal protection laws in 2017 by the Animal Legal Defense Fund. The state has recently passed laws banning most cosmetics tested on animals and outlawing the retail sales of dogs and cats, and multiple California cities have banned or are considering banning fur products.

*October 2019 Update: A survey released in 2017 by the American Academy of Matrimonial Lawyers (AAML) showed the trend of animal custody cases decreased between 2014 and 2017. In a 2014 survey by the AAML, more than a quarter of attorneys said they had seen an increase in such disputes between 2009 and 2014.

Further Reading:

Text of Assembly Bill No. 2274.

● Rogers, John. (September 29, 2018.) “California divorce courts go to dogs as pets gain status.” Associated Press.