Canine Custody After Divorce

Is Your Dog Simply a Piece of Property?

Does Florida even allow custody and visitation rights for a dog, a cat or other pet? A divorce lawyer says that the short answer to that question is no (see Bennett v. Bennett below); family pets are treated as property, which taken together with other marital assets, must be divided equally (Florida is an equitable distribution state). For instance:

It was your fifth year as a married couple, and to your surprise, your husband brought home a puppy named Spot. Over the next several years, both you and your husband walked the dog, fed him, and played with him. In return, Spot provided both of you with love and affection and even protected you on the mean streets of Miami. In fact, you all grew quite attached to one another. However, you and your husband are now going through a divorce and you have moved to Fort Lauderdale. In addition to asking the Court to divide the marital assets, you also want the court to determine who gets custody of and/or visitation with Spot. Is there any fair way to do this when both of Spot’s owners are going their separate ways?

It was Florida’s landmark decision in Bennett v. Bennett, which held that although “a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property.” 655 So. 2d 109, 111 (Fla. 1st DCA 1995). In that case, the trial court awarded “custody” or the parties’ dog to the husband and gave visitation rights to the wife. After the judgment was rendered, the wife filed a motion for a change in custody, arguing that her ex-husband was interfering with her visitation rights. And although the trial court granted the wife’s motion, effectively giving her visitation with the dog every other month, Florida’s First District Court of Appeal reversed it in Bennett v. Bennett. This decision put a “nail in the coffin” to the idea that a family pet could garner custody and visitation rights (like a child) after its owners’ divorce. In line with this decision, because a dog is a personal property, a Court must award possession of the animal pursuant to the dictates of Florida’s equitable distribution statute. The Bennett court reasoned that this is the appropriate outcome because no authority in Florida case or statutory law enables a trial court to grant custody or visitation pertaining to personal property.

It is true that several other states have given family pets a “special status” within divorce proceedings; the Bennett court believed this course was “unwise.” According to the Bennett court, in Florida, the courts are already overwhelmed with pending family law matters involving humans (custody, visitation, child support, etc.), doing so with animals will prove even more burdensome by adding to the already overworked and understaffed court system.

To go back to our hypothetical from the introduction, it would be wise to circumvent the court when establishing custody rights to your pet. To be safe, before the conclusion of your divorce trial, create a written agreement laying out the custody of and visitation with Spot. If you leave the matter in the hands of the court, Spot will just be considered another piece of property that needs to be divided.

If you are going through a divorce and are concerned about the custody of your pet, consult an attorney to consider your options.

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