We Americans love our companion animals. According to estimates from the American Society for the Prevention of Cruelty to Animals (ASPCA), up to 47 percent of U.S. households own a dog and up 37 percent own a cat. This translates to between 70 and 80 million dogs and between 74 and 96 million cats with whom we share our homes and lives. But what happens when a household splits in divorce? Who gets the pets? Can either spouse ask the court for visitation rights with their furry family member? A ruling by an Illinois appeals court at the end of last year sent a very strong message on the subject: when it comes to pet visitation, the courts are staying out of it.

In Re Marriage of Enders and Baker

The ruling was issued in the appeal of a divorce judgment involving a couple that had been married for 10 years. During the divorce, the husband filed a motion for visitation with the two dogs the couple had adopted in the course of the marriage, claiming that his wife had denied his visits for several months. The trial court granted the husband temporary visitation rights, as he had left the dogs in the care of his wife when he moved out prior to the divorce. In the trial court’s decision, the temporary visitation order was vacated. and the dogs were awarded solely to the wife.

In his appeal, the husband claimed that the trial court had erred in refusing to grant him visitation rights and that his visitation was in the dogs’ best interests. He also asked the appellate court to clarify that any Illinois court does have the authority to grant such rights.

Help From New York

The appellate court acknowledged there was no precedent set by previous cases in Illinois, but found a very similar situation that had played out in a New York court just a few years ago. The laws regarding pets, property division, and visitation are comparable between New York and Illinois, and the court found the New York case to be a reasonable standard. In Travis v. Murray, the New York Supreme Court refused to apply a standard of a dog’s best interest because dogs are not considered by law to be as important as children. The New York court did agree that companion animals are more than just property, but pointed out that awarding visitation “would only serve as in invitation for endless post-divorce litigation.”

Using that standard, the Illinois appeals court declined to override the trial court’s decision, noting that the trial court is typically better suited to “to view and evaluate the parties and their testimony.” The trial court and the appellate court agreed that the only reference to pet ownership in Illinois law can be found in the Animal Control, which defines an owner as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” The husband left the dogs in the care of his wife, who acted as their custodian. Therefore, the court found her to be the sole owner. Visitation is not referenced in the law and, by virtue of this ruling, Illinois courts do not have the authority to order it.

Customize Your Own Agreement

It is important to realize that, if you are going through a divorce, you and your spouse have the right to negotiate the terms of your divorce settlement, which can include pet visitation. The recent Illinois ruling only clarified that the courts cannot make such a determination independently. If you have questions about drafting a divorce agreement that provides for the care and visitation of your pets, contact an Orland Park family law attorney today. Call 708-518-8200 for a no-cost consultation at any of the three locations of Kezy & Associates.

Sources:

http://www.aspca.org/animal-homelessness/shelter-intake-and-surrender/pet-statistics

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2015/1stDistrict/1142435.pdf

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_23405.htm

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1704