Massachusetts is looking to become the ninth state to standardize a framework for judges to use in determining care and custody of companion animals during divorce.
Pets are property. As much as owners, individually, give their animals value akin to children or siblings, the legal system still considers them property. Yet, pets are continually recognized more and more as beings under state laws.
Recently, states have begun creating frameworks for determining with whom the pet should live based on the “best interest of the animal.” This phrase comes from a parallel phrase in family law: a core principle in determining child custody and visitation. These frameworks are a split from the common considerations in court where the owner is whoever paid the pet’s adoption fee or on a simple community vs. separate property analysis.
An Act standardizing consideration of pets in divorce and separation—Senate Bill 1205 (“S.1205”) and House Bill 1817 (“H.1817”)—has been referred to the Joint Committee on the Judiciary. If passed, an additional section would be added to Chapter 208 (Divorce) of the General Laws which gives four factors for the court to consider in awarding sole or shared custody of a pet:
(i) Whether the parties are seeking sole or shared custody of the animal;
(ii) Each party’s history with the animal, including in acquiring the animal and subsequent amount of time spent, expenses incurred, and caregiving responsibilities undertaken such as feeding, walking, playing, grooming, training, and veterinary visits;
(iii) The emotional attachment of each party to the animal and, if relevant, of any children in the household; and
(iv) Whether any party or person residing with any party has a history of abuse, cruelty, neglect, or violence toward animals or humans including those resulting in a conviction, continuance without a finding, or abuse prevention order.
The factors are written to assess the health, safety, comfort, and well-being of the pet.
It is important to note that Massachusetts recently set new precedent for pet custody, though the decision was limited to disputes between unmarried partners. In 2024, the Massachusetts Court of Appeals held that pets, though property, are “special.” Lyman v. Lanser, 231 N.E.3d 358, 366 (2024). In Lyman, an unmarried couple acquired a Pomeranian dog named Teddy Bear during their relationship. They orally agreed to share custody of Teddy Bear if they ever split up. Upon their split, Plaintiff sought specific performance of their agreement against his ex-girlfriend who had, for two years, refused to let him visit Teddy Bear. Plaintiff’s attorneys, Boston Dog Lawyers, argued that pets should warrant special consideration under the law because of their distinct personalities and emotional value. The Lyman case will likely be discussed at the upcoming hearing on S.1205/H.1817.