Andrew Taylor of Shemtob Draganosky Taylor (Photo: Courtesy Photo)

Those who go through divorces in Pennsylvania are often surprised that the beloved family dog is considered personal property, the same as a piece of furniture or a painting: one spouse gets the dog, the other does not. There is no “pet custody” in Pennsylvania and family court judges do not have the ability to issue orders requiring the parties to share time with pets. That, however, may all change.

On May 8, Pennsylvania House Bill 1432 was introduced by state Rep. Anita Kulick of Allegheny County. If made into law, it would amend certain sections of Title 23 and, upon the request of a divorcing spouse, require a judge to rule on who would get custody of the family pet.

The bill refers to a “companion animal,” which it defines as a “domesticated, living being commonly referred to as a pet” as well as animals that provide assistance to those with disabilities. The bill first seeks to rewrite the legislative intent of the commonwealth by stating that companion animals are living beings regarded as cherished family members and are a special category of personal property. The bill provides that it is the policy of the commonwealth that special consideration be given to companion animals when personal property is divided in a divorce.

The bill would amend 23 Pa. C.S.A. Section 3105 that addresses the effect of agreements between divorced parties. Specifically, it would allow the parties to enter into an enforceable agreement spelling out periods of time during which each party would possess the animal as well as provide for financial responsibility of the animal. In other words, if the parties sign an agreement for pet custody and pet support, it can be enforced by a judge. This is presumably in response to DeSanctis v. Pritchard, 803 A.2d 230 (Pa. Super. 2002), in which the Superior Court affirmed a trial court's decision not to enforce a provision of a property settlement agreement that contained a visitation provision for the family dog.

The bill would also amend 23 Pa. C.S.A. Section 3502 (equitable division of marital property) and require a family court judge, if requested, to provide for the possession, care or both of a companion animal; in other words, custody of the pet. The bill mandates consideration of the following factors in awarding custody of the pet: whether the animal was acquired prior to or during the marriage; the basic daily needs of the animal; which party generally facilitated veterinary care for the animal; which party generally provided the pet with social interaction; which party generally ensured compliance with state and local regulations regarding the animal; which party has the greater ability to financially support the animal.

The appeal of pet custody is obvious: divorce is stressful and being deprived of your pet only compounds that stress. Anyone with a pet would probably agree that a dog or cat is not in the same category as table, couch or lamp and that there should be some consideration given to allowing both parties to see a pet following a divorce.

However, the bill ignores some simple realities, like putting more on the plates of already overburdened family court judges. The majority of family court judges in Pennsylvania would probably agree that they barely have time to expeditiously hear child custody cases, some of which address the most important issues in family court. Family court dockets are full and court time is precious. The thought of family court judges now being forced to decide pet custody, while other cases are put on hold, is concerning.

The bill would require a judge to take testimony and create a record on the factors regarding the care of the pet, much like the factors a judge must consider in child custody cases. For example, the judge would need to hear evidence on who took care of the pet during the marriage, who took the pet to the veterinarian, who walked the pet, who socialized the pet and who is in a better financial position to care for the pet. Not surprisingly, divorcing spouses rarely agree on much and have different versions of the facts during the marriage. The “he said she said” requires attorneys to conduct discovery and provide testimony from third-parties at trial. All of this takes court time.

Also, it would not just be original decisions on pet custody that take court time. Just like child custody cases, there will certainly be those who violate custody orders and prompt contempt petitions, which require hearings. Family court judges would be required to decide contempt issues if the family dog was dropped off late, withheld in violation of the order or not taken to the veterinarian. Meanwhile, family court judges already struggle to schedule multi-day complex child custody hearings, wade through hundreds or thousands of protection from abuse actions and quickly decide child custody relocation cases. Deciding and enforcing pet custody does not appear to be the best use of a judge's time.

At first glance, it might appear that allowing for pet custody could ease some of the stress of divorce and promote settlement. However, this may not happen. Family court is full of emotional issues like custody of children, division of assets and financial support of a dependent spouse, just to name a few. Adding in who gets custody of the family dog may only fan the emotional flames and make it less likely that a case will settle. In Pennsylvania, there must be an agreement or order dividing marital property before a divorce is granted. Pet custody will add one more issue that must be agreed on or litigated before a divorce is final, and one more point of disagreement between parties. In other words, allowing for pet custody gives divorcing spouses one more thing to fight about and could work to prevent settlements, not promote them. It is certainly conceivable that the parties could agree on who gets the house, how the pensions will be divided and who will assume marital debts, but the sticking point becomes who sees the dog and when. This would prevent an overall settlement and force the case to be litigated.

While House Bill 1432 is undoubtedly appealing to pet lovers, especially those who have gone through a divorce, its implications should be carefully considered. If passed, the bill could place a substantial burden on family court judges and possibly prevent divorce settlements by adding one more hot-button issue into an already emotionally charged divorce.

Andrew D. Taylor is a partner at the boutique family law firm of Shemtob Draganosky Taylor in Blue Bell. Taylor has practiced family law exclusively for over 15 years and has argued complex family law matters before the Superior Court and Pennsylvania Supreme Court. He is the former chair of the Montgomery Bar Association family law section and is a frequent speaker and author on a number of family law topics. He can be reached at 215-542-2105 or [email protected].