Pet Custody in Pennsylvania

April 25, 2017
Nala Blu

Nala Blu

Earlier this year, much to my husband’s chagrin, we drove over an hour to Maryland to spend a Sunday afternoon at the home of a stranger.  We left with our new four-legged baby- Nala Blu.  More and more people choose to open their homes to rescue pets.  I must admit, it is a pretty fulfilling feeling to know that you were able to save the life of an animal whose fate was once questionable.  Our girl happened to be thrown into a cardboard box with her 8 brothers and sisters and left next to a dumpster in Tennessee.

This Sunday, April 30, just so happens to be “Adopt a Shelter Pet Day.”  Each year, more than 3.2 million pets are rescued from shelters across the US.  Each one comes with their own special story and leaves with their own special place in their new families’ hearts.

If you have ever had a pet, you know that almost immediately they become an integral part of your family, and are treated just like (or maybe even better!) than children.  But what happens to our four-legged kids when a marriage falls apart?  Some may find it hard to believe, but people do fight over their pets.  And unfortunately, in 49 of the 50 states, courts will refuse to step in to help.  In fact, the courts have labeled our beloved pets as nothing more than property.  In its 2002 decision in DeSanctis v. Pritchard, the Pennsylvania Superior Court went so far as to equate a dog to a table or lamp.  I can’t imagine that analogy won the hearts of those who read it.

Under Pennsylvania divorce law, personal property is distributed between the parties as the court sees fit after analyzing a list of factors.  And because a pet is considered personal property, they will be lumped into the “equitable distribution” of all property.  So if you want to keep your furry friend, you may have to give up that new big screen TV.

In one state, however, things are looking up.  In ground breaking legislation earlier this year, Alaska became the first state to consider the custody of pets in their divorce laws.   The new law requires judges to consider “the well-being of the animal” when determining into which owner’s home it will be placed.  The law even allows for the possibility of “joint custody” or “primary/partial custody,” and considers many of the same factors used in determining the best interest of the children.

Unfortunately for now, couples in Pennsylvania are stuck with figuring it out on their own.  According to the DeSanctis v. Pritchard decision, the courts won’t even enforce a written agreement outlining custody between owners, even if the agreement is signed by both parties.  In the DeSanctis case, the courts established the “Barney rule” (named for the couple’s dog), which says that pets are personal property and that courts are not able to enforce any agreements based on their custody.  Instead, the pet stays in whomever’s house it is currently living.  So you may want to think twice before letting your ex take your dog for a visit.

While there’s no indication of change in Pennsylvania laws any time soon, our neighboring state of New Jersey shows promise for the future of pet custody.  New Jersey courts have held that, while still considered property, pets are at least in a special category of property.  In Houseman v. Dare, the court ordered the specific performance of an oral agreement for shared custody of a pet.  This furry friend got to rotate houses every 5 weeks.

When I was about eight years old, our puppy almost died after developing pneumonia just a few days after bringing her home.  I remember my mom telling the pet store that our puppy was not a toaster when the store suggested we bring her back to “exchange” her for a new one.  I guess in the eyes of Pennsylvania, my mom was wrong.  Of course we won’t tell her that!  We should have adopted anyway.

Kathleen Krafft Miller is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Widener University and regularly advises  individuals on legal matters related to family law and domestic relations issues.