For most people who have pets, they are not like things – they are like family. However, as in most states, North Carolina law considers pets property to be distributed between the spouses, just like furniture. A handful of states have adopted “pet custody” laws that treat pets more like children than furniture. Those bills have received strong bipartisan support, so hopefully this is a trend.
Fortunately, in North Carolina and other states where pets are legally treated as property in divorce cases, judges still have latitude to consider the pet’s best interest. They just aren’t required to do so under current law. And, without a change in the law, judges do not have authority to set a rotating schedule without the parties’ consent.
Negotiation is your best bet. When parties understand that they can do by agreement what a judge may not be able or willing to do at all, it is a powerful incentive to settle the case (or at least to settle this part). That is the one way in North Carolina that you can assure the details you want about pets. A pet custody agreement can include things like a rotating custody or visitation schedule, how medical decisions are made, and how vet bills are paid. (In fact, you can even negotiate pet custody ahead of time in a pre-nuptial or post-nuptial agreement that is signed and notarized.)
If reaching agreement isn’t possible, a judge will have to decide. Because pets are a special kind of property, and because of the strong emotional bonds, many North Carolina judges will consider a pet’s best interest in deciding ownership. For example, the judge may consider who is more attached to the pet, who has been the pet’s primary caretaker, and who is better able and willing to provide suitable care (especially as that may relate to health needs). If the pet was a gift from one spouse to the other, that is also a factor, but sometimes the dynamics of care change over time. As noted above, though, a judge has the authority to award ownership of the pet to one or the other, but they do not have authority to set a custody schedule. Although they technically can award joint ownership of a pet, they typically will not because it isn’t practical where they can’t also order a schedule and ground rules. Remember the one situation where a judge lacks authority to change ownership is when a party owned the pet before marriage. That makes the pet “separate property” rather than “marital property.” A judge can only distribute marital property, not separate property.
Like most states, North Carolina allows a domestic violence protective order (DVPO) to make provision for pets. A protective order may include possession of personal property of the parties, including the care, custody, and control of any pet owned or kept by either party or by a minor child living in the household. The court may also order a party to refrain from cruelly treating or abusing a pet owned or kept by either party or by a minor child residing in the home. North Carolina adopted this law in 2009. It is important because some domestic violence victims stay with their abuser for fear of what will happen to their pet.
In time, hopefully North Carolina will join those states with a pet custody law for all divorce cases. It would be better for pets and for the owners who care deeply about them.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough. She can be reached at (919) 732-7300 or at kim.steffan@steffanlaw.com.