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Doggone It! Court Cannot Condone Canine Custody

James W. Cushing, Esq. on 6/21/2016

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Many Americans have pets, and regardless of whether these pets are dogs, cats, lizards or fish, many pet owners think of their pets as members of the family. What happens when a pet is owned by a married couple who decide to divorce? The landmark Pennsylvania Superior Court case of Desanctis v. Pritchard, 803 A.2d 230 (2002) has answered this question rather definitively.

In Desanctis, the parties were married for about nine years. While they were married, they purchased their family dog, Barney, from the SPCA. As part of their divorce agreement, the parties, using terms typically reserved for child custody matters, awarded wife "full custody" of Barney while husband received what is tantamount to "visitation."

Not long after their divorce, wife moved a fair distance away from husband and discontinued making Barney available to the husband for visits. Due to wife's actions, husband filed a complaint against wife in equity. Husband sought injunctive relief to, inter alia, force wife to provide Barney to him, and modify the "custody" arrangement for Barney to ensure he had more time with his pooch. Wife filed preliminary objections to husband's complaint that were granted by the Court of Common Pleas, which resulted in the dismissal of husband's complaint, leading him to file an appeal to Pennsylvania Superior Court.

In its review of husband's complaint and the preliminary objections, and the applicable law, the Pennsylvania Superior Court first pointed out that pets, regardless of our emotional attachment to them, are simply personal property. The court ruled that the agreement explicitly awarded the dog to wife. The court further ruled that any terms in an agreement which award a type of custody of the dog are void on their face.

Although it may be tough for animal lovers to hear, the court, rather bluntly, stated that a visitation schedule for a dog is analogous, in law, "to a visitation schedule for a table or a lamp." As a result, pursuant to 23 Pa.C.S.A. Section 3503, property rights dependant upon a marital relationship are terminated upon divorce and, therefore, pursuant to 23 Pa.C.S.A. 3504, the parties to a divorce are to have "complete freedom" as to their property upon divorce. An agreement to somehow share property is not, by definition, complete freedom.

So, a divorce, in addition to dissolving the relationship between a husband and wife, also serves to potentially dissolve the relationship with a person and his pet. This is important to remember when separating as one may want to claim the pet as soon as possible in order to try and do as much as possible to retain the pet post-divorce.

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