WHO GETS TO KEEP THE FAMILY PET IN A DIVORCE?

Custody of the family dog was recently considered by the Florida Court of Appeal in a Florida divorce case captioned Harby v. Harby.  In this case, the Former Husband and the Former Wife were married in December 2001.  In November 2017, the Former Wife filed a Petition for Dissolution of Marriage.  The Former Husband and Former Wife own two dogs.  Their names are Liberty and Nico. At the trial, the Former Wife testified that Liberty was an emotional support dog. The Former Wife also testified that she took care of Liberty and Nico from 2013 to 2017.  Between 2017 and the date of the trial, the Former Husband took care of both dogs.

The trial court awarded custody of the family dogs to the Former Husband.  The Former Wife appealed this decision.  She argued that Liberty was her emotional support dog.  The Former Husband testified that he and his Former Wife agreed that the dogs should not be separated from each other.

The Florida Court of Appeal pointed out that in some states, family pets are recognized as having a special status that may be considered by trial courts in awarding custody and visitation of the family pet.  For example, Alaska allows trial courts to determine a pet’s well-being in awarding custody and visitation in an Alaskan divorce proceeding.  The State of Florida does not consider the family pet to have a special status.  In the State of Florida, pets are considered to be personal property.  As such, Florida trial courts cannot award custody or visitation of pets.

In Florida, there are two types of property.  There is nonmarital property and marital property.  In distributing marital property, trial courts begin with the premise that the distribution of marital property should be equal.  In the case at bar, Liberty and Nico joined the family during the course of the marriage, so they are considered to be marital property.

In considering how to distribute this marital property, the Florida Court of Appeal stated that trial courts may consider any special needs and circumstances that the parties may have.  For example, in this case, the Former Wife argued that she should receive Liberty, because he was an emotional support dog.  Emotional support dogs provide emotional support that ameliorates one or more symptoms of a person’s disability. Emotional support animals do not require training to provide this assistance.  In the case at bar, however, there was no evidence that the Former Wife had any physical or mental disability for which Liberty provided comfort.  In point of fact, the Court of Appeal found that the Former Wife had no disabilities whatsoever.

The Florida Court of Appeal stated that in awarding possession of pets, trial courts may consider the parties sentimental interest in the pets.  However, parties’ sentimental interest in their pets does not take priority over financial fairness to both of the parties.  In this case, the evidence presented at trial revealed that the Former Husband and the Former Wife used Liberty and Nico to provide comfort to their children during the divorce proceedings.  The Appellate Court also found that the children resided most of the time with their Father.  Additionally, the Father took care of the dogs for the last three years.  Finally, the appellate court ruled that Liberty and Nico were family dogs, and were not the personal possessions of the Former Wife.  Based upon this reasoning, the Florida Court of Appeal upheld the trial court’s decision to award the family dogs to the Former Husband.

To speak with a Palm Beach Gardens divorce attorney to discuss family law issues in Florida, contact the Lane Law Firm, P.A. at (561) 363-3400.

Contact Information