Open Access Research Article
White Black Legal – International Law Journal · ISSN 2581-8503
FROM PROPERTY TO FAMILY: PET CUSTODY IN DIVORCE AND THE GLOBAL CASE FOR THE “BEST INTEREST OF THE PET” STANDARD
Read the Full Research Paper
Access the complete open-access article in PDF format. No login is required.
Abstract
FROM PROPERTY TO FAMILY: PET CUSTODY IN DIVORCE AND THE GLOBAL CASE FOR THE “BEST INTEREST OF THE
PET” STANDARD
AUTHORED BY - KRIPA GAMBHIR & DR. RITU MALIK
Abstract
Divorce law mostly treats pets as personal property
and does not recognise the bond they share
with their owners. This article
argues that the law should
change to match how owners
see their pets, as members of
the family. It compares the laws of Alaska (2016), Illinois (2017) and
California (2018), the three US states that have started to move away from the
property approach towards the “best interest of the pet” model, each in its own
way. The comparison draws on case law and scholarly writing. The article finds
that most jurisdictions still follow rigid rules that treat pets as personal
property. The three states have brought some change, but their laws differ in wording and are
vague on how to judge a pet’s well-being. As a result, judges who want to act
in the pet’s interest are sometimes unable to, because they lack the authority
to do so. India has no law on pet custody either, and its courts decide such
disputes case by case, so it also needs clear statutory rules. The article
concludes that other jurisdictions
should adopt the “best interest of the pet” model and write it into their laws
with clearer provisions.
Keywords: pet
custody, best interest
of the pet, companion animals,
divorce, animal law
1. Introduction
When a couple gets divorced, why does the court treat their pet as tangible
property? According to a 2015 Harris
Poll, more than three in five Americans, about 62%, own at least one pet, and
ownership is highest among the two youngest
generations, Millennials and Gen Xers.1 Ninety-five percent
of these owners consider their
pet a member of the family.2 The same poll in 2018 found that a majority
of Americans with pets (69%) see them as family members, and 23% see them as children.3
The problem begins with
how courts decide pet disputes. They mostly rely on one thing: the pet’s property
status.4 A dog may be seen as a family member
or even a child, but under Florida law it is personal
property. This reasoning appears in Bennett v. Bennett (1995). The court held that
it had no authority to award custody
or visitation of property. It also said that custody
would create supervision problems,
and that courts are already
overloaded with children’s custody cases and cannot take the same responsibility for pets.
The pet is therefore awarded under the equitable distribution statute.5
But this is changing.
A 2014 survey found that more than 25% of matrimonial lawyers
had seen an increasing shift in pet custody cases, and 22% said courts are now accepting such cases more often.6 Three US states have changed their laws: Alaska (2016), Illinois
(2017) and California (2018).7 Judges there can now consider the pet’s
wellbeing, and not only who owns it. This is because owners see their pets as
more than property and value them like family. All of this brings attention to the concept
of the “best interest of the pet.” Here the pet’s interest
is the main priority, and factors like who paid for the pet or who
bought it no longer decide the case.
This brings us to the question
of whether other
countries should adopt the US “best interest
of the pet” model instead of treating pets as property. This article
argues that pets are more than personal property and should be treated as family. The argument rests on a simple fact:
people already treat their pets as family, and the law should reflect
this, with clearer provisions than those in the US. The article first examines
the current legal position, including the position in India, and then compares
how Alaska, Illinois and California handle these disputes. It then considers
the objection that courts are overloaded and that existing law is enough, and
finally ends with a recommendation for reform.
2. Current Legal Position
In most jurisdictions,
pets are treated as personal property, which does not match how their owners feel about them.
Dowdakin notes that most jurisdictions view pets as personal property, with no rights of their own in law. A dog or a cat therefore
cannot sue or inherit property
in its own name.8
Pallotta reaches the same finding: animals are legally defined as personal property.9
In the eyes of the law, a beloved
pet is nothing more than property, and the word “custody” is a
misnomer because the case is legally about dividing property.10 According to
Pallotta, courts mostly decide these disputes on the basis of who the more
rightful owner is. In practice, this means who bought the pet or who paid the
adoption fee.11
Courts usually ignore factors that matter in real life, such as who is more involved in caregiving, who takes the pet to the vet, who shares the closer
bond and who spends more time with the pet. Unfortunately, there
is no test for working out
what is best for the pet.12
Even outside divorce,
the same rule applies. The property label also lowers the value of a pet when it is wrongfully hurt or killed.
In such cases,
the court asks the owner one question: what was the market
price? The law treats the pet like a broken phone, and the court
does not count the owner’s grief or the
sentimental value of a family
member.13
Owners think of their pets as family, so putting
a price on them feels
wrong, and replacing a pet with another animal
feels as absurd as replacing
a child.14
The same idea appears
in inheritance law, where animals
cannot own anything. In In re Estate of Russell (California, 1968),
discussed by Dowdakin, Thelma Russell left her property to her friend of twenty-five years,
Chester Quinn, and to her dog, Roxy.
The court held that the gift to the
dog was not valid simply because a dog cannot
become a beneficiary in a will.15 The court also considered whether she meant to create a trust for Roxy’s care after her death, but rejected
this, because the will did not show any intent
to place that duty on Mr. Quinn. The case shows
that an owner who loved her pet could not leave it money directly,
and her wishes for the dog’s
care were not enforced.
On a brighter note, some courts are moving away from this strict property analysis,
though the position is still
unclear. Judges have the discretion to consider the best interest of the pet,
and some have done so, but the norm remains a strict property approach.
Pallotta notes that some have suggested judges
are reluctant to apply a “best interest” standard because they do not want
to appear as activists.16
This may be one reason the standard is not applied more widely.
2.1
Position in India
India also has no law that deals with the custody
of pet animals. Family and divorce laws do not mention companion animals, so Indian courts decide these disputes case by case, with no rules
to guide them.17 In Sunil Malhotra &
Ors. v. State
(NCT of Delhi) (W.P.(CRL) 581/2026, Delhi High Court, 16 April 2026), Justice Girish Kathpalia
dealt with three rescued dogs that a breeder
wanted back. The court held that the custody of a pet cannot be treated like the custody of an inanimate object, and that
the bond between the dogs and their adopters cannot be ignored.18 The court
let the adopters
keep the dogs,
and the breeder will get them back only if he
is acquitted and it suits their welfare.19 However, this was a criminal matter and not a divorce, and both sides had agreed to the arrangement. The court did not adopt
the “best interest
of the pet” standard. A similar dispute,
Mahua Moitra v. Jai Anant Dehadrai, about visiting access
to a pet dog, is still pending in the Delhi High Court.20 Together, these
cases show that Indian courts are moving towards the welfare of companion
animals without any statute to rely on. This is why clear and firm rules are
needed, as discussed above.
Under current
law, pets are legally viewed as property, which does not match how owners treat them. This gap has started to
shrink, because some US states have changed their laws. These laws are examined
in the next section.
3. Comparative Analysis
In 2016, Alaska became
the first state to amend its divorce law so that judges consider the
“well-being of the animal.” Illinois followed in 2017 with a similar law,
directing judges to consider the “well-being of the companion
animal.” California came next in 2018, but it took a
weaker approach and authorised judges to consider the “care of the pet animal.”
Under these provisions, courts can now award sole ownership of a pet to one
owner, or joint ownership to both owners. Joint ownership was first explicitly
allowed in Alaska.21
Pallotta notes
that Alaska was the first
state to write
the “well-being of the animal”
standard into its divorce
law, and the first to allow joint ownership of a pet.22 The statute provides that the court
“may provide . . . if an animal is owned, for the ownership or joint ownership
of the animal, considering the well-being of the animal.”23 Pallotta describes this as a requirement on judges, but Bouwma notes
that it is unclear whether
“may” makes the consideration mandatory or only a suggestion.24 The law has also
been criticised as too broad, because it uses the word “animal” and not “companion animal,” so it covers any owned animal.25 An earlier
case, Juelfs
v.
Gough, 41 P.3d 593
(Alaska 2002), shows the same thinking at work. The Alaska Supreme Court held that it was in the best interests of the dog, Coho, to be awarded
to Steve Gough
alone. The court also examined whether joint visits would work, but did
not order them, because it found that the former couple, Julie and Stephen,
should have no contact at all.26
This suggests that the relationship between the couple can affect what is best
for the animal.
In Illinois, section 503(n) of the divorce
law (750 ILCS 5/503(n)) provides
that if the court finds a companion animal to be a marital
asset, it “shall allocate the sole or joint ownership of and responsibility
for” the animal, and “shall take into consideration the well-being of the
companion animal.”27
The word “shall” makes this mandatory, and Bouwma treats it as the most
important wording in the law, since the analysis must be made in every divorce
case involving a pet.28 The law carries a condition: the pet must be a marital asset.
It also applies
only to a “companion animal,” a term that does not include service
animals.29
It follows the definition in the Humane Care for Animals
Act, which covers
an animal commonly
considered a pet, such as dogs, cats and horses. On this basis, Bouwma
thinks that pets like fish and mice would likely be excluded.30 The statute also speaks of “ownership and responsibility,” and not
“custody.” The weakness is that Illinois courts
have not created
a specific test for “well-being,” so each judge could
define it differently, which could lead to inconsistent results.31 The sponsor
of the law, Senator Linda Holmes, said that it starts treating
pets more like children and less like property.32
California followed in
2018 with section 2605 of its Family Code (Cal. Fam. Code 2605), which has two parts. Under the first part, the court
“may” order a party to care for the pet during
the divorce case, and this order does not affect the final decision on who gets the pet. The main rule is in the second part: the court
“may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.”33 The law has some weaknesses. The word “may” makes the consideration optional.
The early draft of the law (AB 2274) said “shall,” but the final version
changed it to “may,” which
gives judges discretion.34 California also uses the word
“care” instead of “well-being.” Care is narrower, as it covers
the prevention of harm or cruelty
and the provision of food, water, veterinary care and shelter,
and it may leave out the pet’s
bond with the owner. In addition, “pet animal” is defined as any animal
that is community property and kept as a household pet, which is very broad and
could include fish and rats.35
Even so, Pallotta argues that the law still gives judges guidance in treating
pets differently from other property, where before there was none.36
All three states have moved away from asking
only “who owns it” and now allow
sole or joint ownership. However, their wording differs. Illinois uses
“shall,” California uses “may,” and Alaska remains unclear.
Alaska and Illinois
use the broader concept of “well-being,” while California uses the narrower
concept of “care.”
California also adds a temporary
care order for the period of the case, while both
laws apply only to animals that are marital or community property.
The law has moved
on from treating
the pet as personal property,
and now gives
it recognition as a “companion
animal.” Yet this progress faces a criticism: none of the three laws explains
how a judge should decide what an animal’s well-being actually means. To fix
this, Bouwma proposes a list of factors
for judges. These include elements
such as who spends more time with the
pet, who feeds, walks and grooms it, and, most importantly, the kind of bond the pet shares with each caregiver. The animal’s
psychological well-being should be given due importance, along with which
caregiver has more time, whether the home is suitable and the caregiver’s
resources. She adds that this standard should fall slightly short of the child
custody standard, because animals are not persons and cannot say what they
want.37
This list shows that pet custody involves much more than dividing property,
and it shows why a country adopting
this model should write clearer provisions than the US has.
4. Counter-Argument
Not everyone
agrees with the “best interest
of the pet” model, and several objections have been raised
against it.
The first objection is that courts are already
overwhelmed, and that pet custody
cases would be difficult to supervise. In Bennett v. Bennett (Florida, 1995), the
court stated that custody and visitation lead to enforcement and supervision problems, and that courts are already
overloaded with matters involving children.38 In Travis v. Murray (New York, 2013), the court stated
that “[w]hile children are important enough to merit endless litigation,
as unfortunate as that litigation may be, dogs, as wonderful as they are,
simply do not rise to the same level of importance.”39 However, this objection can be
answered with Bouwma’s suggestions. She proposes that pet custody orders should
be non-modifiable, so that they cannot be reopened, which would prevent
never-ending conflicts. She also refers to a one-day trial without an appeal,
and her proposed law allows joint ownership only in rare instances.40
The second objection is
that courts already decide these cases fairly under current law, so no change is needed. This is Gregory’s
view. He points
to Houseman v. Dare (New Jersey),
where the trial court, after the case was sent back by the appellate court, ordered shared possession of the dog while still calling it
property.41
Pallotta, however, shows the other side. Where trial judges ordered
joint custody or visitation, higher
courts have sometimes overturned these decisions because
animals are property
and the judges
had no authority to make such orders,
as in Bennett.42
So a fair result depends on the judge, and the law does not require anyone to
consider the animal’s welfare. A clearer approach like “best interest” would
give judges the authority they currently lack.
The third objection is
that a pet is not a child. Bouwma explains that pet custody and child custody are not “virtually identical,” and that a court cannot easily evaluate an animal’s mental well-being, because animals cannot
say how they feel.43
To tackle this, she suggests that the standard should fall slightly below the
child custody standard. Courts should instead look at practical factors
that are more appropriate to apply, such as the bond with each caregiver, who spends more time with the pet, who feeds and walks it or takes it to the vet, and who provides a better home environment and what
resources each caregiver can offer.44
These objections are
mainly about how difficult it would be to apply the “best interest of the pet” model,
and not about
whether pets deserve
consideration. The answer,
therefore, is to write
clearer rules and provisions, and not to reject the model.
5. Conclusion and Recommendations
Other countries should adopt the “best interest
of the pet” model instead
of treating pets as mere property. Pets are not just
possessions. For many people they are family members who bring love, trust and
companionship, and some people see them as their own children. If the law
ignores this, it lags behind how people actually live, and it needs to reflect
the bond people share with their pets.
This article showed
that current law treats pets as property, and that this affects divorce, wills
and compensation for a wrongfully killed pet. It also showed
that Alaska, Illinois
and California have started
to change this,
but their laws differ from each other
and are unclear
on how to judge
“well-being.” The objections discussed earlier can be answered
with clearer and more flexible rules that suit the needs of
today’s world.
The model can also work
across different countries, because other legal systems have already started to
treat animals differently. In 2007, the European Union recognised animals as
“sentient beings” through
an amendment to the Lisbon
Treaty, and the term “sentient” refers to the
ability to feel pain, joy or fear. In 2015, the same was done in places like
France, New Zealand and the Canadian province of Quebec. In 2018, Slovakia
changed the definition of “animals” in its civil code to say they are living beings
and not things.45 Pallotta notes
that even laws that are mainly
symbolic can help change how society thinks,
so a change in law is a step
in the right direction.46
Bouwma suggests several
changes to make pet custody fairer. First, the law should use the words “best
interest of the companion animal” and not only “well-being,” because this
covers the pet’s emotional and mental well-being and its bond with an owner. Second,
the consideration should be mandatory, using
the word “shall”
as Illinois did, and not the optional “may” used in Alaska and
California. Third, courts should look at clear factors, such as who spends the most time with the pet, who walks and feeds it, and who takes it to the vet. Finally, joint ownership should be allowed
only in rare instances, and custody orders should be non-modifiable, to prevent
endless conflicts.47
The law should recognise
pets as members of their owners’ families,
deserving protection more like
children than like property. It is time to move beyond treating
pets as mere property and to
give them the recognition they deserve.
1Nicole R. Pallotta, Chattel or Child: The Liminal Status
of Companion Animals
in Society and Law, 8 Soc.
Scis. 158, 1–2 (2019) (reporting the 2015 Harris Poll).
5Bennett v. Bennett,
655 So. 2d 109 (Fla. Dist. Ct. App. 1995),
quoted in Pallotta, supra
note 1, at 11.
6Pallotta, supra note
1, at 10 (reporting the 2014 survey of the American Academy
of Matrimonial Lawyers). 7Alaska Stat. §
25.24.160(a)(5); 750 Ill. Comp. Stat. 5/503(n); Cal. Fam. Code § 2605. The
years follow Pallotta. The Illinois law took effect on January 1, 2018, and the
California law on January 1, 2019.
8Paige J. Dowdakin, Revisiting Roxy Russell: How Current Companion Animal Trust and Custody Laws Affect
Elderly Pet “Guardians” in the Event of Death or Incapacity, 20 Elder L.J.
411, 414 (2013).
12Rachael Bouwma, How to Apply the “Best Interest of the Pet”
Standard in Divorce Proceedings in Accordance
with Newly Enacted
Laws, at 11 (Mich. State Univ. Coll. of L., Animal Legal
& Hist. Ctr. 2019).
13Pallotta, supra note 1, at 11–12.
16Pallotta, supra note
1, at 11.
17Vedang Khera, Paw-per Legislation: Re-thinking Pet Custody
in Matrimonial Disputes, Bar & Bench (Sept. 17, 2026), https://www.barandbench.com/columns/paw-per-legislation-re-thinking-pet-custody-in-matrimonial-disputes.
18Sunil Malhotra
& Ors. v. State (NCT of Delhi)
& Ors., W.P.(CRL) 581/2026, ¶ 4 (Delhi H.C. Apr. 16, 2026)
(India).
20Delhi High Court Says It Will Decide Whether
Mahua Moitra Can Visit Pet Rottweiler Henry, Bar & Bench, https://www.barandbench.com/news/delhi-high-court-says-it-will-decide-whether-mahua-moitra-can-visit-pet-rottweiler-henry;
Khera, supra note 17.
21Alaska Stat. § 25.24.160(a)(5); 750 Ill. Comp. Stat. 5/503(n);
Cal. Fam. Code § 2605; Bouwma,
supra note 12, at 10–17 (general discussion).
27750 Ill. Comp. Stat. 5/503(n).
28Bouwma, supra note
12, at 13.
33Cal. Fam. Code § 2605.
34Bouwma, supra note 12, at
16–17.
35Cal. Fam. Code § 2605;
Bouwma, supra note 12, at
15.
36Pallotta, supra note
1, at 11.
37Bouwma, supra note
12, at 21.
40Bouwma, supra note
12, at 26–27.
41Houseman v. Dare, 966 A.2d 24 (N.J. Super. Ct. App. Div. 2009), discussed in John DeWitt
Gregory, Pet Custody: Distorting Language and the Law, 44 Fam. L.Q. 35,
63–64 (2010).
42Pallotta, supra note
1, at 11.
43Bouwma, supra note
12, at 20.
45Pallotta, supra note
1, at 24.
47Bouwma, supra note
12, at 26–27.
How to Cite This Article
KRIPA GAMBHIR, DR. RITU MALIK, FROM PROPERTY TO FAMILY: PET CUSTODY IN DIVORCE AND THE GLOBAL CASE FOR THE “BEST INTEREST OF THE PET” STANDARD., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 1452-1462. Available at: https://www.whiteblacklegal.co.in/details/from-property-to-family-pet-custody-in-divorce-and-the-global-case-for-the-best-interest-of-the-pet-standard-by-kripa-gambhir-and-dr-ritu-malik
Author & Publication Record
Authors: KRIPA GAMBHIR & DR. RITU MALIK
Registration ID: 107219 | Published Paper ID: WBL7219 & WBL7220
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 1452-1462
Full Text Preview
Open in New Tab
Copied