Until a few months ago, the only statute dealing with custody of a pet was found in the Illinois Domestic Violence Act of 1986, which allows a judge to award temporary legal custody of an animal if domestic abuse is a danger to the pet. 750 ILCS 60/214. However, effective January 1, 2018, the Illinois Marriage and Dissolution of Marriage Act includes provisions providing for allocation of possession and responsibility of pets in a divorcing family. Instead of regarding pets merely as property, this statute takes into account the well-being of the pet.
Enders v. Baker, 48 N.E.3d 1277 (1st Dist., 2015) is the first case in Illinois where a judge ruled on pet visitation, holding that a one could not seek visitation with a pet in a divorce. In this case, the wife filed for divorce and the husband claimed that she had promised him “joint custody” of their two dogs. However, she had been denying him any role in the dogs’ lives so he filed a request for temporary visitation with the court. That visitation request was granted and visitation was ordered pending trial. However, at the end of the trial, the wife was awarded possession of the dogs and the husband was denied any visitation.
Basing much of its decision on the New York divorce case of Travis v. Murray, 42 Misc.3d 447 (N.Y. Sup. Ct., 2013), the Enders Court seemed to agree with the Judge’s statement in Travis v. Murray that “dogs, as wonderful as they are, simply do not rise to the same level of importance” when comparing them to children and the amount of litigation that arises concerning child custody and visitation. Travis v. Murray at 461. Additionally, based on the facts that the dogs were left solely in the wife’s care and possession when the husband moved out of the marital residence, and on the Animal Control Act which regards a pet 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 Court found the wife to be the “owner”.
After the new law takes effect, we can (hopefully) expect a shift in the decisions on pet custody in a divorce from the outcome and reasoning of the court in Enders. As the courts move towards considering the pet’s well-being, it would behoove potential litigants to keep thorough and accurate records the following types of documentation:
- Ownership-such as proof of purchase/proof of adoption, microchip, and other animal registration documents
- Pedigree registries
- Veterinary visits
- “Doggy daycare” or dog-walking services
- Training classes
Cari Rincker, as a pet owner herself, has developed a strong reputation as both an animal lawyer and family law. Her sweet spot is where the two overlap. Cari is a trained mediator for family law disputes and can mediate divorces and separation involving animals. Furthermore, Cari is a recognized matrimonial litigator in Central Illinois and New York City. Please contact Cari if you are interested in speaking regarding your pet ownership/custody issue from a divorce or separation.