In a case in which the parties to a divorce can’t agree as to who gets to keep the pet(s), or whether the other person has a right to visitation, the Court does have the authority to make a decision regarding pet possession (custody) and pet visitation. Recently the Illinois appellate court did consider the visitation issue in Enders v. Baker, 2015 Il.App. (1st) 142435. Some lawyers read this case as a bar to pet visitation or pet custody being ordered by the Judge, while others (like me) read the case as giving authority to the court to order pet visitation and pet custody.
No Illinois appellate case prior to Enders v. Baker addressed the issue of pet visitation, so that the Court looked to a New York case which had addressed the issue: Travis v. Murray, 977 N.Y.S.2d 621, 631 (N.Y.Sup.Ct. 2013). In that case, the New York Supreme Court declined to apply the “best interest” of the dogs standard because dogs do not rise to the same level of importance as children. That Court did apply a “best for all concerned” standard, maintaining that “household pets enjoy a status greater than mere chattel.” However, that Court stated that awarding visitation “would only serve as an invitation for endless post decree litigation”. For some Judges and lawyers, that may seem to be the end of the visitation issue for now.
On the issue of pet possession/custody, I believe that the Court did analyze the issues of who was best to be the owner of the dog (as there is no basis for the court to award joint custody/possession of the pet). The Court obviously felt that it did have tools for it to work with, to make an informed and analyzed decision, rather than just make make one of the parties the “owner” of the two pets in that case. The Court looked to the definition of “owner” of pets in relation to the Illinois Animal Control Act: “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” (510 ILCS 5/2.16)
In order to decide which party should get the two dogs, the Illinois Court was in a position to simply award either or both of the two dogs to the wife (who ultimately was awarded the two dogs) as property, rather than go through the Animal Control Act analysis. In my opinion, the Court would not have to have done the additional analysis unless it did feel that it was making the best informed and analyzed decision. The Court crafted a tool to use, to make a custody/possession decision, even if there are some who believe that the Court did not intend to start a basis for making custody/possession pet decisions in other cases.
As to the issue of pet visitation, the husband in the Illinois case had testified that he had moved to an apartment where he was not allowed to have pets. I think that that made the Court’s decision easier to make as to whether husband should have court-ordered visitation with the two dogs. If the facts of another case are better suited to a visitation plan for the pet(s), I believe that the Courts do have the power to fashion one. Parties to a divorce are allowed to continue owning property together after the divorce, if the facts are suitable for that. There is no Illinois law which forbids parties, in an appropriate case, from continuing to own property together in some manner. However, ultimate ownership to one party only is the preferred outcome, as it is more likely to keep the peace. One type of case which is prime for this consideration is that of children and the pet following the children for visitation with a parent.
If the parties do have an agreement for visitation with the pet(s), the Court will very likely uphold it. That is certainly the easier way to provide for visitation with pets.
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