Pet Custody Comes to Illinois

Companion animals play an ever-increasing role in American society.  US pet industry expenditures were $38.5 billion in 2006 and nearly doubled to $66.75 billion in 2016.  According to the 2017-2018 APPA National Pet Owners Survey, 68% of US households own a pet, equating to 84.6 million homes.

The strong emotional bond that binds people to their pets is undeniable, and it is a bond that courts and legislatures throughout the country are increasingly recognizing.  California Supreme Court Justice Arabian, in his dissenting opinion in Nahrsted v. Lakeside Village Condominium Ass’n, 8 Cal. 4th 361, 390 (1994), summarized it as follows:

The value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation.  People of all ages, but particularly the elderly and the young, enjoy their companionship . . . Animals provide comfort at the death of a family member or dear friend, and for the lonely can offer a reason for living when life seems to have lost its meaning . . . Families benefit from the experience of sharing that having a pet encourages.

 Until recently, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) has been silent as to specific references to pets, and they were allocated as personal property in a divorce, just like the furniture, automobiles and appliances of a marriage.  On August 25, 2017, Illinois Governor Bruce Rauner signed into law, Public Act 100-0422 (the “Act”), which makes provisions in the IMDMA for the allocation of possession and responsibility for companion animals jointly owned by parties in a divorce proceeding.  Public Act 100-0422 becomes effective January 1, 2018.

The Illinois Legislature will now also take a step toward recognizing the unique value of pets.  While the Act does not use the words “custody” or “best interests” in referring to the allocation of pets, and the language still refers to them as “assets” and makes reference to ownership, consideration for the welfare of the animals will now be codified in the statute, which reads:

In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.

Public Act 100-0422 at Sections 501(f) and 503(n). (Emphasis added.)

In other words, the court is now required to consider the pet’s “well-being”, which is a significant departure from the way all other property is treated under the law.  For instance, courts do not consider which party will get more regular oil changes when it allocates a car, or who rinses the dishes more thoroughly when allocating a dishwasher.

While the Act exclusively deals with “companion animals,” it does not define them.  However, since it exempts service animals as defined under the Humane Care for Animals Act (510 ILCS 70/1 et seq.)  (“HCAA”), the HCAA’s definition of a “companion animal” should be considered.  Specifically, the companion animal is “an animal that is commonly considered to be, or is conserved by the owner to be, a pet.  ‘Companion animal,’ includes, but is not limited to canines, felines, and equines.”  510 ILCS 70/2.01a.

Parties who are contemplating divorce should be prepared if possession of the family pet may be contested in the divorce proceeding.  Ownership/adoption papers and registrations should be maintained indicating which spouse acquired the pet and also which spouse primarily cared for the pet.  Relevant issues to consider may include which spouse takes the pet to veterinary visits, training classes and who makes arrangements for pet care during vacations since that spouse may have an advantage in establishing herself as the primary caretaker of the pet.  Therefore, maintaining veterinary receipts, health records and training records may provide important documentary evidence.

While the Act seeks to have courts consider the welfare of pets in their allocation decisions, it will be interesting to see how courts will rule with respect to valuable companion animals, such as horses, which can be worth substantial amounts of money, and show dogs and cats.

If you think the ownership or possession of your companion animal will be contested in your divorce, you should seek an attorney who is experienced and knowledgeable in family law and raise the issue early to best position your case for ownership in the dispute.

 

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