While many people consider their pet(s) a part of the family and love them just like a child, Texas child custody laws do not apply to pets. Rather, for the purposes of divorce, pet custody is handled as part of a property division determination. Texas is a community property state, which means each spouse retains their own separate property upon divorce, while community property is divided between the spouses. A pet purchased or adopted by one party prior to the marriage or gifted to one party during the marriage is “separate property.” By contrast, pets are presumptively “community property” when they were purchased or adopted during the marriage or were born to pets during the marriage, even if the parent pet is “separate property.”
Judicial Determination Regarding Pet Custody
If a pet is community property, attorneys can assist spouses in negotiation, mediation, and other methods of alternative dispute resolution to help them reach an out-of-court agreement, where possible. However, if two spouses cannot agree on who will keep the pet, a judge will determine which party is more appropriate to care for the pet in the long-term. In making this determination, a judge will examine the answers to certain questions. Those questions may include:
If the children of a divorcing couple are close with the pet, the judge may give the pet to the spouse who has primary custody of the children. If there is more than one pet, the judge may divide animal custody. For example, a dog may be placed with the spouse who is home more often, while a cat may be placed with the spouse who works longer hours. Ultimately, the judge will aim to place the pet in the home where its needs will best be met. The judge will also examine the other property each spouse receives to try and achieve ‘a fair and equitable division’ of the overall community estate.
Agreements Regarding Pet Custody
Unlike in child custody cases, courts do not grant visitation rights for pets. However, a judge is likely to enforce an agreement that the parties have entered regarding pet visitation (i.e., explicit terms regarding a visitation schedule in a prenuptial or postnuptial agreement).
Contact an Austin Pet Custody Attorney
If you’re in the process of separating from your spouse and are concerned about animal custody, contact Kirker Davis LLP to schedule a meeting with an experienced pet custody and family law attorney today.