Jan 19, 2016

In a Divorce, Illinois Courts Have No Authority to Order Pet “Visitation”

Americans love their pets. Recent studies estimate that roughly 78 million dogs and 86 million cats are owned in the United States. In other words, pets reside in nearly 65% of all households.It is not surprising, therefore, that when parties decide to dissolve their marriage, an increasingly contentious issue is what – if any – post-divorce rights they have to spend time with the pets which have become part of their family?In the first case of its kind in Illinois to address this issue, our Appellate Court has ruled that courts have no authority to enter an order requiring that a soon-to-be ex-spouse have “visitation” rights with Fido or Fluffy.InIn re Marriage of Enders and Baker, 2015 IL App (1st) 142435, the parties had been married for more than ten years. After the wife filed a Petition for Dissolution of their marriage, the husband filed a motion seeking visitation with the two dogs – Grace and Roxy – they acquired during their marriage. The husband alleged that the parties had contemplated their having joint custody of the dogs, but that the wife had refused to allow him to visit with them for several months. The trial court granted the husband’s motion, and ordered that he be given temporary visitation with the dogs on alternating weekends, from 10:00 a.m. Saturday until 8:00 p.m. Sunday.At trial, one of the contested issues was the parties’ relationship with – and rights to – their two dogs. The wife testified that when the husband moved out of the marital home, the two dogs were left in her care. According to her, someone was always at the house, and the large dogs enjoyed their big yard. Regarding his temporary visitation with the dogs, the husband testified that although his apartment lease did not allow pets, he had a verbal arrangement with the landlord to allow the dogs to visit periodically.At the conclusion of the trial, the court awarded the dogs solely to the wife, and denied the husband any right to visitation. The husband appealed, claiming that Illinois courts have authority to order pet visitation, and that his visitation would be in the best interests of the parties.Noting that this was an issue of first impression in Illinois, the appellate court looked to a 2013 New York decision relied upon by the trial court and which denied dog visitation. InTravis v. Murray, 977 N.Y.S.2d 621, the New York court declined to apply a “best interests of the dogs” standard which mirrored the “best interests of the child” standard, finding it to be “unworkable and unwarranted.” The court did acknowledge, however, that a pet is “decidedly more than a piece of property,” and accordingly used a “best for all concerned” standard to determine which spouse should be awarded the animal. Nevertheless, the New York court refused to even consider allowing visitation to the other party, as this would “only serve as an invitation for endless post-divorce litigation, keeping the parties needlessly tied to one another and to the court.” TheEnderscourt relied upon this reasoning to likewise conclude that Illinois law has no provision for pet visitation after a divorce.Turning finally to the question of which spouse should be awarded the dogs, theEnderscourt noted that the sole Illinois statutory definition for a pet owner is set forth in the Animal Control Act, which defines an owner as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” Here, the appellate court held that the wife was the “owner” of the dogs because they remained with her when the husband moved out of the residence. She therefore was the person who “keeps or harbors” the dogs, has them “in [her] care,” and acts as their regular “custodian.”As society shifts away from viewing pets simply as “property” and more as members of the family, there can be no doubt that additional cases will arise in which these types of disputes will be litigated, and further guidance will be offered by both the courts and the legislature. For now, however, when a marriage dissolves, it is clear that Illinois courts lack legal authority to order either pet “custody” or “visitation.”

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