New California Law on Care of Pets in Divorce Proceedings

The San Diego Union-Tribune reports that California recently passed a law (AB 22764) clarifying how courts may take into account care of pets in determining who will receive them following divorce proceedings.

The text of the new section 2605 of the Family Code (which will go into effect on January 1, 2019) is as follows:

2605. (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal. 

(b) Notwithstanding any other law, including, but not limited to, Section 2550, 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. 

(c) For purposes of this section, the following definitions shall apply: 

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter. 

(2) “Pet animal” means any animal that is community property and kept as a household pet.

Prior to the passage of this law, pets were deemed community property to be split equally among the parties to the proceedings. Now, courts have a formal basis for considering which of the parties to the divorce fed the pet, took the pet to the vet, or cared for the pet in other ways in determining which of the parties should get custody.

Notably, subsection (c)(2) specifies that this law only applies to pets that are "community property," so this law does not apply to pets that either of the parties may have had before the marriage. As for pets that both parties bought or adopted together, but before they were married, this could be complicated. If one of the parties paid for the pet, the court may well view that pet as that party's separate property. If the parties adopted the pet from a farm in northwest Iowa without making any payments, this could make things more difficult to determine. The parties could also agree in writing that a pet owned prior to the marriage is deemed community property following the marriage.

All of this seems very complicated, so the California legislature would do well to pass a law clarifying the disposition of pets obtained by two people in a relationship before the marriage. A simple solution would be preferable, such as (just off the top of my head) a law that the pet should go to the third party the married parties know from law school who frequently cares for the pet while the married parties are out of town. That law has yet to materialize, but at least for now, judges have a formal basis to consider care of pets when determining who gets custody.