Custody and Care of Companion Animal Mediation: What You Need to Know About It
Most pet owners regard their animals as family members. But, while you may think of your pets as mini-persons, the law until recently regarded them as “property.”
Below is a highlight of the two most current disputes related to the care and/or custody of companion animals we have encountered in our mediation practice and how they can be handled by using mediation.
1). Pets owners’ divorce
Judge Matthew Cooper once wrote, “People who love their dogs almost always love them forever. The same cannot always be said for those who marry.”
Maybe to your surprise, it is true that pet ownership can become highly contested in a divorce. Just as parents want the very best for their children, they also want the best for their companion animals. As a result, it is not rare to see pet owners engage in highly emotional and contentious legal action regarding their pets.
Since January 1st, 2019, a new California law allows pets to be treated as more than just community property in a divorce.
Before January 1st, 2019, dogs, cats, and other pets were divided just like any other piece of property in a California divorce proceeding. To put it simply, the judge would typically place a value on all property belonging to the couple. For example, the end table may be valued at $200 and the pet may be valued at $200. The Judge would then award the end table to one spouse and the pet to the other spouse thereby achieving an equal division of the community property.
Although the new law technically classifies pets as being personal property (per opposition to community property in the previous law) and gives judges the power to consider the care and the best interest of the pets when making decisions in separation or divorce by creating shared custody agreements or entering orders that require one party to care for pets before the final determination of what would become of the couple’s animal(s), many couples still find the court’s approach to pets unsatisfactory.
As a result, we see more and more divorcing couples mediating their companion animals’ custody and care even if they still fight in court on other subject matters. The reason is quite simple: if an agreement is reached through mediation regarding the companion animals before the end of the court proceedings for the divorce this arrangement is immediately enforceable as long as it is signed by all parties. It will then simply be incorporated in the final court order acknowledging the divorce and its conditions.
2). Pets owners’ incapacity or death
If you own a pet and you are hospitalized and unable to care for your pet, what happens?
Is there a person who would be willing to take your pet while you are hospitalized? Is this person to be paid? What medical care do you want your pet to have? All of these issues can be set out in a durable power of attorney for property management that you sign prior to your incapacity. Your agent (the person you named in your document to be in charge) can act on your behalf regarding your pet.
If you don’t have this document in place, then hopefully someone will step up to care for your pet during your incapacity.
That said, no one will care for your pet as you do. If you die, what will happen to your pets? Have you made provisions in your Will or Trust for your pets?
More and more people specify in their Will or Trust who the pets are to be given to and provide a cash bequest to offset the cost of food, shelter, vet bills, and medication for their pets. Based on our experience, the average cash gift we have seen is usually between $10,000 to $15,000.
In the same vein, some people, usually without children, will specify through their Will or Trust that their pet is the only beneficiary of their estate. In California, this was not allowed until the law changed in 2009. But since 2009, the California Probate Code section 15212 was added to allow a trust in which only an animal was the beneficiary.
Many times, relatives of the deceased pet owner don’t like the idea that cash assets and/or a house worth a few million dollars are being held in trust for the benefit of an animal for the rest of the animal’s life. Therefore, if you are in this situation carefully planning your pets’ future is critical to carry out your wishes for your pets after your passing. One of the ways to avoid complications and maybe a trial initiated by those who thought they would inherit all or part of your estate instead of your pet is to reach an agreement with them using mediation before your passing and/or including a mediation clause in your trust.
For the record, the most common provisions in mediated animal companions’ agreements we worked on are as follows:
* Ownership agreement;
* Custody agreement;
* Visitation schedule;
* Agreement regarding payment of veterinarian bills;
* Agreement regarding pet insurance;
* Commitment to notify the other person regarding any health issues of the pet;
* Conditions required before transporting the pet to another city;
* When a pet hotel may be used by the parties and how the expenses will be shared.
To conclude, as Mahatma Gandhi put it: "The greatness of a nation (…) can be judged by the way its animals are treated." For all of you who really care about the future of your pets, we at MPSV, understand that pets are family members and that they deserve love and attention in family planning. Please contact us if we can assist you in making decisions for the care of your beloved animal companions.