When it comes to who gets the kids, the house, the car, or alimony, judges in divorce court can rely on lots of case history for guidance and discretion as they make decisions.

But what about four-legged, furry family members — or even leaping lizards? In all but three states, pets of divorcing couples are treated like inanimate, physical property, not like living, breathing beings who often hold a place of honor in a family. So a judge’s decision on which “parent” gets custody of a pet is not necessarily guided by what’s best for the animal. Judges also lack the legal authority to issue orders related to things like pet-support payments and visitation plans.

“It’s a tricky issue because the law has not caught up with” the growing regard of pets as being akin to family members, said Philadelphia family law attorney Andrew Alston, of the Metka Law firm. “It’s almost barbaric to think of pets as nothing more than property.”

Nancy Kenny and her ex-husband, Steve, amicably share custody of their two dogs, Doodle, left, and Tess.
STEVEN M. FALK / Staff Photographer
Nancy Kenny and her ex-husband, Steve, amicably share custody of their two dogs, Doodle, left, and Tess.

Rising use of the term “fur baby” certainly indicates the elevated role of pets in people’s lives, said attorney Julie R. Colton, who practices family law mediation at Obermayer Rebmann Maxwell & Hippel LLP.

“The introduction of pet custody laws reflects the current culture where ‘fur babies’ accompany people to dinner, on errands, on vacations, and throughout their lives,” Colton said.

Currently, just three states have pet custody laws: Alaska (passed in 2016), Illinois (2017), and California (2018). State Rep. Anita Astorino Kulik (D., Allegheny) hopes the Keystone State will one day be among them. Last May, she introduced HB 1432, which would guide judges’ decisions regarding pet guardianship in divorce cases. The bill was prompted by her own experience as an attorney.

“During my career, I have witnessed too many divorce proceedings in which a couple could not agree on the best arrangement for a beloved pet. At times, a pet can be used by one party as leverage against the other when negotiating the division of assets,” Kulik said when the bill was introduced.

If passed, HB 1432 would establish the following factors for judges to consider when deciding the proper guardianship of a pet:

  • Whether the animal was acquired prior to or during the marriage.
  • The basic daily needs of the animal.
  • Who generally facilitates veterinary care and social interaction for the animal.
  • Who generally ensures compliance with local and state regulations, such as licensing.
  • Who provides the greater ability to financially support the animal.

A divorcing couple would also be able to enter into an enforceable agreement, outside of a divorce decree, that provides for the possession and/or care for a pet, according to the bill.

Still, if passed, the legislation likely would not end all dog fights.

The bill does not address pet disputes between nonmarried couples, nor how the definition of marital property would interact with the pet custody legislation. And it is still not clear if the court would have the authority to order someone to provide financial support for a pet, said attorney Colton.

She also noted that the passage of a pet custody law could open the door to more litigation, adding to an already overburdened court system. “In cases of abuse, pet litigation could be utilized to further harass someone,” she cautioned.

Such were the legal nightmares that Nancy Kenny and her ex-husband, Steve, avoided during their 2018 divorce, simply by being reasonable when it came to deciding custody of their dogs Doodle, 13, and Tess, 9, each of Great Dane heritage, and each beloved by the Kennys.

Nancy Kenny and her ex-husband, Steve, amicably share custody of their two dogs, Doodle, left and Tess.
STEVEN M. FALK / Staff Photographer
Nancy Kenny and her ex-husband, Steve, amicably share custody of their two dogs, Doodle, left and Tess.

After their split, Nancy, 58, moved from their once-shared home in Cinnaminson to a Victorian twin in Moorestown, where she has a big backyard. Steve, 60, moved to the couple’s weekend place, in Atlantic City, which has a small side yard and sits on a busy street. It made sense, they agreed, for Nancy to have primary custody of the dogs.

So they closed off her new yard with a fence high enough to keep Doodle, who doesn’t fare well with other animals, from barking when neighbors walked by with their own pups. And Steve’s alimony payments to Nancy took into consideration the cost of caring for the dogs.

“They’re big” — over 100 pounds each — “they eat a lot, have medical issues, and if I go out of town, it can cost $400 a week to board them,” said Nancy.

Steve, who travels a lot for work, sees the dogs as often as his schedule allows. And when Nancy was recently away for a week, he kept the pets with him — walking a leashed, cranky Doodle on the sidewalk, then bringing frisky Tess to the beach to gallop off some energy.

All in all, custody of the dogs was one of the easier things to negotiate in their divorce, said Steve. They didn’t need a judge or a law to make them put their pets’ best interests first.

“We’d never think of using them as leverage,” said Steve. “They’re not chess pieces. They’re animals we love. We want to do the best we can for them.”