And They Call It Puppy Love: Pet Custody in Illinois
By Laura Baldwin and Sean McCumber
Effective January 1, 2018, the General Assembly modified that status in cases involving dissolution or declaration of invalidity of marriage, elevating companion animals to a new status. Specifically, the new provisions of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) provide that a party may petition or move for allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties.4 The statute requires the courts, in making decisions, to take into consideration the well-being of the companion animal.5 The statute specifically excludes service animals, but leaves the definition of companion animals quite vague. The Human Care for Animals Act defines a “companion animal” as an animal that is commonly considered to be, or is considered by the owner to be, a pet.6 “Companion animal” includes, but is not limited to, canines, felines, and equines.7 Of course, animals commonly considered to be pets include dogs, cats, fish, and birds. However, the phrase “is considered by the owner to be a pet” opens the courts in domestic relations to a proverbial Noah’s Ark of llamas, turtles, snakes, tarantulas, scorpions, hedgehogs, and so on. The new provisions of the IMDMA further require the court to take into consideration the well-being of the companion animal.8 Because these provisions are new, guiding case law in Illinois remains sparse. However, other U.S. states have addressed these issues, which will provide some guidance on application of the new provisions in Illinois.
Prior to the enactment of the new provisions of the IMDMA, only one Illinois Appellate Court opinion addressed the issue of pet visitation. In 2012, Kimberly Enders filed a petition for dissolution of marriage in Cook County to dissolve her marriage with Michael Baker.9 While the couple did not have children, they had two dogs, Grace and Roxy. Neither party disputed that the dogs were acquired during the marriage. Michael contended that the parties had an agreement to allow him visitation with the dogs, which Kimberly ended in December 2012. Kimberly contended that she had been the sole caregiver and provider for the dogs since Michael vacated the marital home in 2011. In April 2013, the trial court granted temporary alternating weekend visitation with the dogs to Michael. At trial, the court awarded sole possession of the dogs to Kimberly. After the trial and entry of judgment, an appeal followed on this and other issues. The First District, in analyzing the issue of pet visitation as an issue of first impression in Illinois, looked to Section 2.16 of the Animal Control Act. In affirming the trial court, the First District, relying on a case from the State of New York, agreed that awarding pet visitation would “only serve as an invitation for endless post-divorce litigation.” As such, the First District determined that an animal’s owner is the one who keeps and cares for the animal as its custodian.10
The New York case, upon which the Illinois Appellate Court relied, is Travis v. Murray.11 The case involved “custody” of a 2 ½ year old dog named Joey. Shannon Travis was involved in a relationship with Trisha Murray in February 2011 when Shannon purchased Joey from a local pet merchant. Over 18 months later, Shannon and Trisha married. Seven months later, Trisha left the marriage and the home and took Joey with her. The custody dispute, as it were, involved two competing arguments: 1) Shannon argued that Joey belonged to her because she bought the dog before the marriage with her own money; and 2) Trisha argued that Joey was a gift from Shannon because Shannon made her give away her cat before moving in together. The Court added a third argument: a custody analysis, looking at the nurturing, care, happiness and best interests of the dog.12 The Court engaged in a lengthy analysis of the concept of pets as chattel, before determining that a strict property analysis (premarital purchase vs. gift to another) would not be appropriate for Joey. Instead, the Court looked to a “best for all concerned” standard, which would take into consideration: a) the benefits to each party by possessing the dog; b) the benefits to the dog by living with one party over another; c) who bore the majority of responsibility for the dog’s needs; d) who spent more time with the dog; and e) other relevant factors relating to this specific dog.13 The Court concluded its opinion, in preparing to set the hearing on the dog’s possession, and stated that the “custody” order would be an end-all opinion.14 One person would be awarded the dog, and the other person would not be granted visitation rights. The Court primarily was concerned about creating a pathway for further litigation over pet visitation and decided that a truly final order was needed in pet possession cases.15 Three years later, New York applied the same analysis in a pet “custody” dispute between an unmarried, co-habitating couple.16
Travis provides some guidance for Illinois courts in applying the new provisions of the IMDMA. However, most states still have not elevated pets to a special property status, worthy of a hearing on joint or sole possession.17 Those cases discuss the very important notion that elevating pets to the same legal standards and protections utilized in child custody proceedings opens the gates to a slippery slope of pet experts, increased court costs, pet visitation supervisors, and so forth. Almost 20 years later, Iowa did subsequently consider the issue of pet possession in a divorce proceeding; however, it analyzed the issue in terms of who acted more like the dog’s owner.18 The tricky analysis for Illinois courts comes from the new provisions of the IMDMA, in which the court will be called to determine whether to allocate possession and responsibility for the companion animal either jointly or solely. Further, the statute remains silent on modification of such pet possession orders. Because pets remain a classification of property, it would seem that a final order on pet possession would not be modifiable, pursuant to 750 ILCS 5/510(b).19
Accordingly, Illinois courts face some of the following dilemmas: 1) how to apply the new statutory provisions as written, and whether they are modifiable; 2) whether to employ “pet GALs” or pet experts, as appear to be permitted by 750 ILCS 5/503(l); and 3) how to address the financial care and support of the pet in light of allocation of responsibilities for the pet.
Dilemma #1: How to Apply to New Law
When it comes to applying the new statutory provisions of the IMDMA, let’s take this scenario: prior to marriage, husband and wife (then boyfriend and girlfriend) purchased a dog at a local pet store. The purchase is made under boyfriend’s name with boyfriend’s funds, but the purchase is made together as the parties know they will eventually marry and live together with the dog. While dating, the parties live apart, and the dog primarily resides with boyfriend. However, girlfriend is very involved, cares for the dog as necessary, comes over often to visit the dog, and for all intents and purposes, acts as a co-owner to the extent possible. The couple marries two (2) years later, moves in together (with the dog), and three (3) years later, the parties file for divorce.
Based on the classification of non-marital property in the IMDMA, property acquired before the marriage is non-marital property.20 The new provisions in the IMDMA regarding companion animals specifically states, “If the court finds that a companion animal of the parties is a marital asset [emphasis added], it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties.”21 It appears the first step of an analysis in a pet dispute must be whether the animal is a marital or non-marital asset. By that logic, the above scenario seems simple: husband purchased the dog prior to the marriage, and it is therefore his non-marital property. Then comes in the slippery slope of potential litigation. Wife may argue the pet was purchased together, in contemplation of marriage; that the husband gifted the pet to the marriage; that the pet is essentially commingled into the marital estate based on wife’s contributions to the pet, the marital estate’s financial contributions, or any other number of complicating factors. As pets remain in the IMDMA’s section 503, Disposition of Property and Debts, this initial step is a question of classification of property; in many divorce proceedings, this may be a catalyst to prolonged and protracted litigation.
What if the court does initially find a companion animal is not a marital asset? Does the finding necessarily preclude a court from allocating sole or joint responsibility for the animal if the facts may incline a court to do so? The statute states what the court shall do if the animal is marital property, but not what the court may do in another scenario. Does it potentially become a step-parent responsibility or visitation analysis based on the well-being of the animal? Does the analysis of the above scenario change if the parties lived together when they purchased the dog? What if one party actually paid for the dog but the receipt shows both parties’ names? What if the dog is registered to both parties? What if the purchaser of the dog later promises in the event of divorce that the other party can keep the dog? In Houseman v. Dare22, a breach of contract case, an engaged, live-in couple purchased a dog together and listed both of their names on the American Kennel Club registration. The boyfriend made a verbal promise to his girlfriend that she could keep the dog when they discussed ending the relationship. Failing to keep that promise, the appellate court required specific enforcement of the promise, and found that dogs possess “special subjective value similar to “heirlooms, family treasures, and works of art.”23 While the couple in Houseman never married, could the argument be used in a divorce situation where a verbal promise regarding a pet is made? In the coming months, Illinois courts will need to navigate through the myriad of factual scenarios such as this that may arise in coming litigation.
Let’s change up the scenario. During the marriage, spouse #1 purchases a dog for spouse #2 as a birthday gift. Six (6) years later, spouse #1 files for divorce. The IMDMA states property acquired by gift, legacy or descent…is non-marital property.24 Is the Illinois court to apply a property classification analysis? Or is the Illinois court to apply a “well-being of the pet” analysis? In Travis, for example, the Court declined to apply a pre-marital purchase versus gift property analysis, and instead, applied a “best for all concerned” standard.25 By that logic, the court would disregard the property analysis and move directly into a well-being of the animal analysis (if only the statute were that clear). To complicate the scenario further, what if the pet was a gift to the children during the marriage? Will the court be inclined to grant “custody” of the pet to the parent with the majority of parenting time with the children? Will the court award joint responsibility of the pet to both parties, and determine pet visitation depending on whose parenting time it is? The varying factual scenarios and legal loopholes that inevitably will follow undoubtedly need to be addressed as Illinois courts maneuver their way through this uncharted territory of the law.
Dilemma #2: Should the Courtemploy Pet GALs or Pet Experts?
When determining the value of assets or property, the court may seek the advice of financial experts or other professionals.26 This provision of the statute is in the very same section as the new provisions regarding companion animals. As companion animals remain in a classification of property under the IMDMA, the court may arguably seek the opinion of a professional when it comes to allocating responsibility over the companion animal. Does this mean appointing a guardian ad litem for the animal who will investigate the parties, their homes, and their respective abilities to care for the pet in order to form an opinion as to what scenario best suits the well-being of the animal? What qualifications will this individual be required to hold? What if the animal is a valuable show animal? Or a crop yielding animal? Can the court employ a financial expert who can do an analysis of the value of the pet?
It appears that courts across the United States are gaining a stronger recognition of the value of pets to individual owners. There are a stream of wrongful harm or wrongful death claims in the United States where one may recover damages for the loss of a companion animal where the loss was being determined oftentimes by the fair market value. Understanding a pet is obviously more valuable to an individual than the household sofa, for example, some state court decisions have indeed allowed the guardian of an animal to recover the “unique value” of the companion animal, taking into account the sentimental value of the pet to the owner.27 If the question in a case becomes determining the “value” one party is receiving over the other if awarded the pet, could this analysis potentially apply in a divorce scenario? It remains to be seen.
Dilemma #3: How will Illinois CourtsAddress the Financial Care and Supportof a Pet When Allocating Responsibilities?
Financially speaking, if joint responsibility of a companion animal is awarded to both parties, is there an argument for support if one party has more responsibility or more time with the animal than the other party, or if there is a large disparity in the parties’ incomes? The pet undoubtedly will have basic living expenses including shelter and food, veterinary expenses, and registration fees. If support or financial contribution is in fact awarded, is it then modifiable if circumstances change? Child support, pursuant to the IMDMA, may be ordered by the court for either or both parents to pay an amount reasonable and necessary for support, and child support is modifiable based upon a substantial change in circumstance.28 As the new provision regarding pets remains in the property section of the IMDMA, it would seem a financial order regarding the care of a pet is non-modifiable, creating an issue for inevitable changes in incomes and situations of the parties who may be ordered to financially contribute. A pet undoubtedly will have reasonable and necessary needs, and if both parties are sharing in the responsibility of the pet, then that arguably also includes financial support. However, the statute is silent on this issue. The IMDMA has yet to address the financial implications of awarding parties joint possession or joint responsibility of a companion animal.
As the legislature resolved a major concern of parties who have deeply bonded with their pet during, and even prior to, a marriage by raising a pet’s status to a level above property and allowing the courts to consider the well-being of the animal, it created an abundance of unanswered questions and statutory loopholes. Only time will tell. As the great Donny Osmond once inquired, “Someone, help me, help me, help me please. Is the answer up above? How can I, oh how can I tell them…this is not a puppy love, not a puppy love.”29
1. Source: the American Veterinary Medicine Association, 2012.
2. This article does not intend to gloss over state and local laws concerning animal abuse, puppy mills, and humane care of animals, but rather is focusing on pets as part of the family home.
3. 725 ILCS 5/112A-14(b)(11.5); see also 750 ILCS 60/214(b)(11.5).
4. 750 ILCS 5/501(f) and 750 ILCS 5/503(n).
6. 750 ILCS 5/503(n).
7. 510 ILCS 70/2.01(a).
8. 750 ILCS 5/501(f) and 750 ILCS 5/503(n).
9. In re Marriage of Enders and Baker, 2015 IL App (1st) 142435.
10. In re Marriage of Enders and Baker, 2015 IL App (1st) 142435, at ¶¶ 131-133.
11. 977 N.Y.S.2d 621, 42 Misc. 3d 447 (N.Y. Sup. Ct. 2013).
12. Id. at 451.
15. Ultimately, before the hearing actually occurred, Trisha was awarded sole possession of Joey.
16. Mitchell v. Snider, 41 N.Y.S.3d 450 (N.Y. Civ. Ct. 2016).
17. Stewart v. Wilson, 356 N.W.2d 611 (Iowa Ct. App. 1984); Bennett v. Bennett, 655 So.2d 109 (Fla. App. 1st Dist. 1995); Nuzzaci v. Nuzzaci, 1995 WL 783006 (Del. Fam. Ct. 1995); Wolf v. Taylor, 197 P.3d 585 (Or. App. 2008); and Hament v. Baker, 2014 VT 39, 97 A.3d 461 (2014).
18. In re Marriage of Berger and Ognibene-Berger, 834 N.W.2d 82 (Table) (Iowa Ct. App. 2013). The Court looked at which parent had primary custody of the minor child and who had bonded with the dog in question, as well.
19. Section 510(b) of the IMDMA provides that the “provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” Because this is a new area of law under the IMDMA, would a change in the pet’s circumstances, or the parties’ circumstances, including relocation, justify a reopening of the judgment?
20. See 750 ILCS 5/503(a)(6).
21. See 750 ILCS 5/503(n).
22. 966 A.2d 24 (N.J. Super. Ct. App. Div. 2009).
24. See 750 ILCS 5/503(a)(1).
25. 977 N.Y.S.2d 621, 42 Misc. 3d 447 (N.Y. Sup. Ct. 2013).
26. See 750 ILCS 5/503(k)(1).
27. Roukas, Marcella S., Determining the Value of Companion Animals in Wrongful Harm or Death Claims: A Survey of U.S. Decisions and an Argument for the Authorization to Recover for Loss of Companionship in Such Cases. Michigan State University College of Law, Animal Legal & Historical Center (2007).
28. See 750 ILCS 5/505 and 750 ILCS 5/510(a)(1).
29. Donny Osmond. “Puppy Love.” MGM 1972.
Sean M. McCumber is a partner with Sullivan Taylor Gumina & Palmer, P.C., He graduated from Illinois State University in 1995 with a B.A. in Criminal Justice Sciences and received his J.D. from University of Illinois in 1998. Sean is an active advocate for children, serving as a guardian ad litem/child representative in many matters, and assisting in creating several guardian ad litem training programs for domestic relations, probate, and adoptions.