How Does Pet Custody Work in An Oregon Divorce?

We sit down with Family Law Attorney, Andrew Hays, to discuss how pets are viewed in the eyes of the law during a divorce, and your options for negotiating custody. In this interview, Andrew addresses the following questions:

•    Why Is This an Important Issue To Talk About?
 •    Are There Pet Custody Laws in Oregon?
 •    How Would a Court Determine Who Gets the Family Pet?
 •    How Can Disputes About the Family Pet in A Divorce Be Avoided?
 •    Can Spouses Negotiate a Custody Agreement for Their Family Pet? 

If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Transcript

Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Legal. And today, I'm here with Attorney Andrew Hays to talk about what happens to the family pet in a divorce. So Andrew, before we get started, can you just tell us a little bit about yourself? 

Andrew Hays  
Sure. I grew up in Washington State up in Cowlitz County, in the Longview and Kelso area. I ended up going to Arizona for various parts of my life moving around, and I became a music teacher. And then after three years of being a K through eight music teacher, I ended up going to law school at ASU and then returned to Washington, as many people are want to do, to return to their home state for some reason or other, where I was a public defender at Cowlitz County, then met someone marvelous. And got married here in Salem, Oregon. And that's where I have been and now I'm practicing family law.

Steve Altishin  
I love it. I love it. Oh, I love the fact that you were a teacher of music and K through eight. I still remember every line to I Am a Happy Wanderer.

Andrew Hays  
Absolutely, I'm sure. I remember all of the 50 Nifty United States, all the states in alphabetical order, because of my fifth grade choir. And I facilitated that myself in Arizona with a bunch of songs like that. 

Steve Altishin  
I love that. I love that. So now, let's talk about dogs and cats and fish, and whatever they are. Because when spouses decide to part ways, the issue of who gets to keep the family pet I know can be really, really contentious. People are devastated if they're going to lose their pets. But how is this really a legal issue in a divorce?

Andrew Hays  
Well, it's the same reason it's a legal issue as anything else in a divorce or anything to do with family law in the courts, particularly in Oregon, it is always best to come to some kind of agreement outside the courts, because the law is doing its best. But the law is not a very delicate tool when it comes to the practicalities of life, or particularly the practicalities of things to do with your property or your children. And of course, pets are kind of halfway in between the two. I've heard it said many times that the law is a great big sledgehammer. And particularly when it's something like pets that everyone that has a pet feels very strongly about their pets have cares a lot about them. And they want to know what is going to happen with their pets in this legal process? And the answer is the legal process is a sledgehammer. You'd better be figuring out some intricacies outside as much as possible. But I do have the answers as far as how the legal process treats pets in the state of Oregon to kind of help demystify and kind of give some predictions, hopefully, hopefully some motivation to come to an agreement between the parties, because that's always the best answer. 

Steve Altishin  
Oh yeah. I mean, you're looking at you and me, maybe in a divorce, trying to figure out what to do with fluffy, or the judge trying to figure out what to do with fluffy and I think you and I probably would be able to have better ideas about it. So yeah, what would the judges do? I mean, what how does the judge ever get involved in this?

Andrew Hays  
Well, the judge, in my experience, judges do care about pets, they do understand the importance of pets, most of them. Some of them just got through two days worth of divvying up children and looking at pretty serious stuff to do with children with special needs. And they look at you and go pet really, but most of them, look at it go they have pets themselves. They care a lot. But the judge in family law only has the authority to do whatever the law gives the authority to do, which in family court, that's a lot. They have a lot of leeway. They have a lot of ability to do what they think is best or whatever is just or equitable. But the judge looking at a pet is going to know that the law of Oregon looks at pets as property. And so a judge is going to be deciding where a pet goes where the pet is going to spend his time as a as property. Now that doesn't mean that the judge is going to treat the family pet as an art war that needs to be divvied up between the parties. But they're going to be looking at a pet as a piece of property. Now, practical consideration, the judge is also going to know that pets a living thing. Also, the parties have certain emotional ties to the pet the pet needs to be looked after. And also the pet is a living thing. If one party is going to be working at 100 hours a week and going to be leaving that pet in the apartment the entire time that is going to have an effect on what the judge is going to be looking at. Another big factor is children, if there are some young children that are going to be spending a majority of the parenting time with one parent, then yeah, you're going to be looking at the pet probably the judge is going to be heavily weighted to put that dog or cat or, or whatever pet that the children have a relationship with those children. But other than that, the judge is really going to be applying the same standards to the pet, that that is applied to property. And these are some factors to do with property that actually don't come up a lot in the splitting of property and family courts. And these are well established statutory case law factors that the courts are allowed to use to analyze where a piece of property goes. And it looks here, I'll bring it up my notes here that I pulled up the case law and statutes of Oregon allow the judge and actually mandate the judge to look at each piece of property as individually as its own individual analysis. That sentimental value of the property absolutely is a an appropriate thing for the judge to be bringing up making findings on and making decisions based off of Now typically, you're talking about heirlooms. If you have your prized grandmothers, great grandmothers broach, then yes, that is an appropriate thing to bring up as sentimental value of that property. But the sentimental value of the pet, thus is legal for the judge to actually make a finding on other things that the court can legally apply to the pet as a piece of property is the conduct of both of the parties towards the pet. So whoever has been taking care of the pet the most is going to be very valuable for the court to look at who got the pet was the pet, a particular help to the person is it a emotional support animal is going to be exceedingly relevant. And also, of course, the other kind of sometimes crass analysis of these kinds of things is the value of the pet. Because the pet is an actual going to be treated as property, that means the pet has to have some kind of valuation. And so if it's just a dog, you found at an adoption center, that's great if the dog took some specialized breeding to get to, or any kind of financial analysis that is going to be very relevant. And it is very likely, if it's an ad, if it's a split of property that both the courts on the property, the parties involved are sitting there tallying up the value of every kind of property. Of course, it's unfortunate if it's gotten to the point where everyone's noting down the value of every property, I would counsel anyone going into this kind of thing with a pet that they want to put into that analysis, there will have to be some kind of valuation puts to the pet. And that is entirely fact dependence.

Steve Altishin  
It's fascinating. You're talking and I'm thinking to myself that, you know, some dogs now are easily five to $8,000. And so I'm thinking okay, the dog, the car, the dog, the car, which do I want. I mean, the value can be that important. And also, I'm wondering, and this is a question now that I wasn't going to ask, but I'm going to is like, in property, it would be rare for the judge, I think, to give the living room set, dividing it by the couch to one and the armchair to the other. So if you had a cat and a dog that had been together for a long time, I imagine that they would possibly be more apt to go together.

Andrew Hays  
Absolutely, yes. And that. That is what I've seen in my experiences. The judges are very practical for those kinds of considerations. They're not going to split a family. There's two dogs, there are two pets that have spent their whole lives together. The judge is going to be very amenable to that kind of arguments as well. They're they're going to be thrown or they're going to be kept together. Because it's they remember they the judge has the ability to do Do whatever the judge finds is equitable, and fair. And in my experience, most of the time, they do look at pets and they think about the effect on the pet. The pet should not have to go from a loving home where they have regular exercise, regular play other pet companions. And then like I said, have to be put in an apartment for most of the hours of their days and lives. The judge is not going to be happy about that. Because the last thing I'll say, there probably needs to be said for any kind of split of property is that the analysis? Just a quick rundown of how a review of how a judge splits property in a divorce. There's two there's two paths, the first path that needs to be gone down is, is this a marital asset? Or is this not a marital asset? So marital assets is things that you've got during the marriage? If it's whether it's asset or debt, you say, Okay, what's the Scott during the marriage, then we're going to apply a presumption that this is 5050. Obviously, they're not going to split a pet 5050 was like, Okay, fine, both have a claim on this pet. If you got the pet before the marriage, then there's no presumption of 5050 goes, okay. It's kind of presumed that it's your pet. Blot. Even though the the, the division of property in Oregon, it splits based on a presumption and then under the presumption tree, it splits whether the other party can rebut that presumption and get rid of it. Even though it branches like this. There's all kinds of technical stuff. Everything funnels back into the same question at the end of property division is, what does the judge think is just and equitable? And so that's why all of the facts are important. And whatever the cases are for pets, whose pet was it? Who was spending the time who was caring for the pet, or their kids involved? What is your ability to have this pet and care for it? And those kinds of things. Now, I will bring up the warning, though. And that is that pet, that it is a murky territory for pets and visitation. I have personally seen cases where I have been involved where the parties are interested in having some kind of visitation schedule for the pets. And they can feel pretty strongly and I think judges aren't surprised by people feeling strongly about pets, particularly for visitation, I sat in a domestic violence proceedings of fabric protection order, where the parties figured out what they were going to do, they were going to live separately good grades, the FAP orders were held in place. But they wanted a special consideration for visitation for the pet. Because both of them wanted that pet to have pets time or parenting time with both people even though there was this other thing. And the judge didn't bat an eye shadow, of course. And yeah. Tim going are you sure there's there's a domestic violence history here. And the judgment know, people feel strongly about their pets.

Steve Altishin  
I like that, I like that. I mean, I imagine you could put it in a parenting plan that when Johnny goes to visit, he'll bring the pet, and that kind of brings the whole concept of not having to judge decide, like you just said, and what kind of things you can agree to, and when you can agree to them. And we talked a little bit before we started about, you know, people do postnups about their stamp collection. And I imagine-- excuse me, prenups, no, not postnups, prenups-- and maybe you could do a prenup that involves your family pet.

Andrew Hays  
Hmm, absolutely. And I would strongly recommend some kind of prenup or the post. Sorry, we were talking about before that postnups aren't legally statutorily recognized in Oregon, but they have been upheld. And so it's a murky, murky territory. But if the two parties can come to some kind of agreement for hate, this person will have the pet but hey, they're gonna have some of the other parents gonna have some time with the pet this day and whatever. Now, as an attorney, it's always difficult to recommend a course to a client that puts them into murky territory. And the problem with visitation plans for pets, is that it is a gray area in Oregon. There is one solitary case in Oregon, where the appellate courts had a chance to address the question and they turned down the opportunity to answer that question. It was all about a stipulated judgment of settlement of a divorce. And inside that settlement they put in visitation for the dog. Later on the two parties had some kind of disagreement. They took it to a The trial, the trial court made a decision they took it up to the appeals court. And one of the arguments was, it is not, it's not legally recognized in the state of Oregon to have some kind of visitation plan for a pet. And so they the Court of Appeals in Oregon said, that's an interesting question. And then they completely ignored it and decided the case on other grounds. And so currently, we have no case law saying whether or not a judge can order visitation for a pet. We have no case law saying whether a two parties if they've come to some kind of stipulation about visitation for pet, if that can be upheld by the Oregon courts. And so, like I said the best the best way is to just come to some kind of agreement between the two people. It's always a roll of the dice when you take unsettled law to a judge, because I can't tell you that there's no prediction unless you know the judge unless you know how they've ruled in the past. But most in my experience, most judges follow reasonable courses. Reasonable they understand. Now, I will mentioned before I forget something very important. Now the case law and the statutes of Oregon for this pet visitation is just non existent, and the case law is unsettled on it. But there is a very important, something I'd like to bring up that is in statutes, and that is pets if there is any kind of domestic violence. So the domestic violence statutes in Oregon follow, or one of the options is, of course, the family Abuse Prevention Act, FAFSA. And in FAFSA, in the Oregon FAFSA orders that the judge gets to fill out if you apply and get awarded a FAFSA protection order, there is a spot for that judge to fill out considerations for a pet. It doesn't work for livestock or any kind of cows and things if it's a business, though. So it doesn't offer that this is just personal companions, pets like that, because they're very well aware that in certain instances of domestic violence, there is a history of retaliation against the pet. And it's horrible, horrible. So the Oregon specifically has put out that judges get to decide about pets, if you have a domestic violence, no contact order, your pet can be part of that. The problem is that Oregon's statewide fap up petition doesn't have that the form doesn't have anywhere warning you that you could fill out a pet. And it doesn't even sure where to put it in. And so I just want everyone listening to this or watching this to know if you're getting a Domestic Violence Protection Order. Don't forget to put in that you have a pet, if you would like that pet to be protected as well to be with you. Because the judge does have a part of their form, there is statutory authority for the judge to make orders concerning pets for those kinds of things. And then interestingly enough, the federal government also feels the same if there is a pet involved. And a no contact order violated that if it involves state crossing state lines to do so it is a federal crime to do anything against a patent. 

Steve Altishin  
Oh my gosh, I like that.  That's wow, you know what, we just blew through our time. 

Andrew Hays  
We did. 

Steve Altishin  
We weren't going to but we did, this is just fascinating stuff. And I really liked the idea of what you were kind of emphasizing if you're gonna go into this situation. It's not just I love the pet more than he or she loves the pet. It's, it's best for the pet to be with me, for the pets reason, not my reason. So I kind of liked that a lot. But we are totally out of time. I so appreciate you talking with us on this on this today. This was a fascinating issue. People talk about it all the time and want to know what to do. And now they kind of have an idea because you made it really plain, simple, understandable, someone like me can understand it. So thank you, Andrew, for being here today. 

Andrew Hays  
Oh, thank you, happy to be here. 

Steve Altishin  
I just loved it. And thank you everyone for joining us today. And until next time, stay safe, stay happy and be well.

Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.