Should Illinois Pet Custody Laws Change?

In this episode we discuss Illinois Pet Custody Laws and the three things to consider when determining custody and responsibilities for a pet after a separation or divorce. If you want to keep your pet after your split, this episode is for you!

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[00:00] Erin Birt: Welcome to the Restorative Divorce podcast, where we focus on all things divorce and parenting related. To help you find clarity, stay informed, and stay out of family court. With 20 plus years of family law experience, our attorney and mediator, Erin Birt, has seen too many times how family court will negatively impact your health, your relationship with your kids, and your wallet. This podcast s aims to turn that around and empower our listeners to take back control of their family law process and their lives by working with divorced professionals that seek to help and not hurt. Our goal is to provide you with expert tips that you can implement today to restore your finances, emotional wellbeing and coparenting skills. Of course, our team at birtlaw.com is always here to customize a restorative divorce plan for you, but for now, listen to this episode to get help today.

Illinois Pet Custody

[01:00] Erin Birt: Today we want to talk about pet custody and why it's such a hot topic. I think more and more people are getting pets. They want to talk about what they're going to do with their pets or companion animals after they separate or divorce. And so it is a frequent topic that people want to know more about. What do you think, Tyler?

[01:27] Tyler Birt: Yeah, I think over the years we've seen that and we can kind of relate to it. Pets in the family have become family members. Back in the day when I was a kid, we had lots of pets and we cared about all of our pets, but they weren't family members, they were pets. But I think over the course of time and as medicine has gotten better and animals live longer than they used to, not every pet is an outdoor pet, pets have become integrated into the family and are just as important as the family itself. So it's not surprising that we've seen over the years the pet custody issue pop up more and more.

Illinois Pet Custody: Pets are Property?

[02:28] Erin Birt: I think an important question to ponder is should Illinois pet custody laws change? Because in Illinois, our dear and beloved companion animals are still treated as property. We have changed some of the laws recently to include new things a court should consider and what a court can either award or decree that you do with your pet. But the overall law in Illinois is a pet is considered an asset or considered property. And so it's hard for people to separate their emotions from the law and the fact that while they are integrated into your family, we still look at them as property. And there are many legal analysis questions that come up with, well, “what kind of property is it? Is it marital property? Is it non marital property?”

[03:43] Tyler Birt: I think from a legal perspective, right, I think it makes sense why they want to treat it as what…Pets as property. If we start in the legal community, and I think the legal community is coming around too, why we still have to treat it as property, I think., it works outside of the court. How do we settle this outside of the court and/or present what we need to to the court as property? However, I think you can get into the weeds. So if we're going to look at this in a different way: How long were you married? Does the length of marriage factor into anything with pets? When we talk about children in relationships, the average lifespan of a child is a lot longer than the average lifespan of a dog or a cat or a hamster. I think it can just kind of steamroll itself. Right? And the courts can get… I don't think the courts want to get bogged down in pet custody. I mean, I think it's enough with child custody.

Illinois Pet Custody: Is it like Child Custody?

[05:12] Erin Birt: But interesting enough, though, Tyler, they are starting to mimic some of the factors of child custody when asking a court to make determinations of pet custody. And to your point earlier about, well, the duration of the marriage, does that come into play? It can influence a decision because in Illinois, the statute actually talks about ownership and responsibility, and the court can make a determination about those two things. And so when we start talking about what is ownership, that comes into: let's analyze is a pet a marital asset? Did you obtain, adopt, purchase this pet during the marriage? And then responsibilities: Who was taking care of the pet? Who primarily took this pet to the vet if there was a special diet? Who was accommodating the special diet if there were medical expenses, who were paying for those medical expenses, and who was administering this medicine? So you can hear some echoes of child custody issues, but again, we have to be clear, it really is an asset analysis.

But recently, Illinois expanded the law to include not only ownership of the asset, but responsibilities for the asset. And so a court will honor a couple's agreement, they won't use language of visitation or pet time or parenting time, but a court, absent an agreement, will look at who is the owner or who will be the owner going forward, and then what are the responsibilities, whether that is caretaking responsibilities or financial responsibilities. So, yeah, it does sound very familiar to some of the custody issues that come up, because it's all about the care of this pet.

But before you get to the care of the pet or how long you were taking care for this pet, you need to figure out, did somebody bring this pet into the marriage? That could be non marital property, right? Did you get this pet during the marriage? That is marital property. So the first step is analyzing what kind of asset is the pet, and then we start looking at responsibilities.

Another consideration that's been included in the recent changes to pet custody laws includes the fact that the court can consider the best interests of the pet or the companion animal. And so, again, we're seeing some more parallels to child custody laws. Now, some concerns there include how do we determine the best interests of a pet? The law is currently silent on that. So are we going to have pet guardian ad litems? Are we going to have pet experts or evaluators that determine the best interests of the pet? So we still have some concerns and issues about how best to determine ownership, the pet best interests, and the caretaking responsibilities, both financial and just day to day caretaking responsibilities.

Illinois Pet Custody: Companion Animals

The law in Illinois talks about companion animals. So it's not any animal, because not all animals are either domesticated or companion animals. And we might have some clients in rural areas that have livestock, other animals that aren't necessarily pets. And that analysis is much different. That is just truly an asset of a business, an asset of a marriage. But we're talking about companion animals here, right.

[09:12] Tyler Birt: Yeah, it's good to make that distinction, but you're right. livestock. And we do, Illinois has huge farming communities around the state. So, yeah, it could get real bad if we start talking about those as companion animals. But I think in general, people understand the concept of companion animals, right, and what we're talking about. The cases that I've heard where pet custody is a big issue are kind of younger, newlyweds. Maybe they've been married a few years here and there, but they don't have kids. So the dog or the cat is the kid. And it's very important to them. The relationship has broken down…I want this (pet) from the relationship, and this (pet) is what I'm going to fight for. And so they will. That's where I think the courts can work with property and they have to kind of treat it as property because it's hard to come up with a schedule, a visitation schedule. To me and to maybe to some of the listeners, it's hard to wrap your head around, “I'm breaking up with somebody. I'm going through this painful process of life changing divorce and separation, and now I have to see this person every other week to drop off the dog.” So it's hard, and I don't know that the courts want to deal with it.

Illinois Pet Custody: Case Law for Visitation?

[11:04] Erin Birt: You're right, Tyler. The only Illinois case about pet visitation that I know of is a 2015 case out of Chicago where the court was asked to enforce pet visitation between a couple. And the Illinois Appellate Court did not want to invite ongoing litigation over pet issues in a family court system. And the appellate court chose to, for lack of a better term, default to the issue of ownership. And what they did was they wanted to determine that one person would be awarded the pet, the other person would not be granted visitation rights. So it really came down to an ownership issue.

But to answer your question earlier, does this affect younger couples that might not have children yet? It does. It clearly does. I have a lot of my younger clients talking about, “what are we going to do now? We were only married two years, but we adopted a dog or a cat during the pandemic. It's my dog or cat. I want to take this with me.” And the other side perceives it differently. But on the flip side of it, I also have families that have pets that a child is attached to. And some families, they might have a 50 50 parenting schedule, one week on, one week off, and they might come up with an agreement that animal will travel with the child. And then I've had some clients that are older, they have a 17 year old cat, they've been married 17 years, and they really would like to talk about the caretaking responsibilities that are still needed for an elderly pet and that they put into during the marriage. And so I think it's a universal issue, Tyler. I think that it affects almost every family, every couple that is facing a separation or divorce.

And so, again, the law is going to be limited by what type of asset it is. And then the second prong of that analysis is the caretaking responsibilities. Is it a companion animal? What kind of asset is it? And then we're looking at responsibilities, whether that's financial or otherwise, for this animal. But families aren't categorizing it that simply and so in mediation, where you are working with a neutral to discuss anything about your relationship, where you're not limited by the law, you're not limited by the rules of relevancy, we have a lot of these overlapping issues that we're talking about, whether it's financial caretaking, my child's attached, I have a majority of the parenting time so I want the animal to live with me, and or I don't want the animal to follow the child. We talk about it in almost every case, if there's a pet, unless somebody just says “no, I acknowledge that maybe because of my work schedule or my spouse adopted that pet and really takes care of that pet, I don't want to go there”.

However, most of the cases when a pet's involved, people will bring it up at some point, and some people are bashful about it. Some people are like, “I don't want to waste your time, but I'm really concerned about my dog, but I really want my dog, and can we add that to the list of things to talk about?”

We're not quite there yet where people feel confident to bring it up as an issue. But it is an issue. It's something that we're allowed to discuss, and it's something that a court will hear if need be.

Illinois Pet Custody: Try Mediation before Court

[15:04] Tyler: Well, I think it's interesting from our perspective, when we look at alternative dispute resolutions, right, mediation, which we handle, and we handle all sorts of them, I think that is where this should be (in mediation). It makes sense to me to not bog the court down with something like this when it is, in the legal perspective, not that big a deal.

[15:36] Tyler Birt: But to people it is a big deal.

[15:40] Tyler: And emotions, there is a lot of emotions attached to animals. You remember your animals, right? I remember my animals from when I was young. I had a lot of them. I was fortunate enough. I don't remember all of them because I had a lot.

[15:58] Tyler: But you do remember and they are a big deal. So I think our office focusing on mediation and settlement based outside of the court system, I think this pet care and pet settlements is a great place to handle it because like you said, it's (mediation) more free flowing. You're not bogged down by time and facts because I think, and obviously you can correct me if I'm wrong, but if you can settle something in mediation and come up with a memorandum of understanding, get that into a settlement document for a marriage, a divorce, then the court will probably sign off on it. Like you said, maybe if the settlement is broken and now it needs to be enforced, somebody's not dropping the dog off on Tuesdays at four when they're supposed to, that's a different situation. But we're not bogging down the system and you're able to maybe peacefully work out a resolution to the emotional attachment of an animal.

[17:19] Erin Birt: Right. And I should correct myself. It's not that the Family Court won't enforce your agreement as to the asset and caretaking responsibilities. They will because it comes really down to what's your remedy? It's probably money. If somebody is saying they're not honoring their caretaking responsibilities, I'm out of the pocket $1,200. A judge is going to listen to the facts, but realize most of the remedies really will be reimbursement of costs or allocation of costs.

But going back to our services and pet custody, being a child centered law firm where most of our clients are dual income earning clients with young children, I would say most of the conversations in mediation or preparing for a separation have to do with what do we do with a child's attachment to the pet? And can a parent continue to be financially responsible for this pet all for the best interests of the children or child? And so that's another factor. Like if we don't just isolate this issue about what does the pet custody statute say, pets can also be taken into consideration when we're looking at the best interests of the child.

Does a child have allergies? Should they not be around pets? That can be a factor in parenting time if one parent has certain animals that keep causing health problems for the child. But on the flip side of that, maybe the child has anxiety and this pet companion lowers their anxiety. Maybe that pet is the one thing that gets them through some of the stressful transitions between the households. Maybe that pet is somebody that or the pet is something that allows that child to sleep better at night.

And so we do need to focus on who's going to be responsible for this pet. But also if you've got children, and most of our clients do, what's the attachment, what are the needs of the child? What's in the best interest of the child for that pet to remain primarily with the child? And how does that then influence your parenting time?

So within all of family law, things overlap. We were just talking about that earlier. Many things overlap: Your finances, your responsibilities, the best interest of the child, all overlap. And pet custody is not unique, it overlaps as well. And so my suggestion to anybody listening is if you have children, think about your children first. Think about does that child have a strong attachment to an animal or to a companion pet and what do you want to do about that? And then we can take the analysis further as to what kind of asset is this, who's been taking care of the pet to try to strengthen an argument that you either retain the pet or there's a specific schedule for that pet. So lots of different ways to analyze the situation.

There's a big movement also that people talk about maybe the laws for pet custody in Illinois need to change because people do find it offensive that they're just reduced to an asset. But when you take the whole family law statute, I think as a whole, and you see that it plays into child custody issues, it plays into the best interests of the child, it plays into the needs of a spouse that wants to retain it and their rights to certain assets - I think we do a pretty good job these days with addressing pet custody issues. But there's always room for improvement.

Illinois Pet Custody: Should Pet Custody Laws Change?

[21:11] Tyler: Attorneys are changing, law firms are changing, people are changing how they handle it. And so I think over the course of time we'll probably see whether it's a law or not. I mean, there'll probably be some sort of standard.

[21:28] Erin Birt: Professionals in family law are progressing. How we handle the issue is progressing. And I think that the law really did progress by adding caretaking responsibilities into factoring what we're going to do.

So our conversation today really hits home that it is actually more complicated than it might initially sound. There are plenty of things that can be discussed. There are tasks for gathering evidence as to your caretaking responsibilities and ownership of a pet. But one of the best ways, to Tyler's point, to discuss all of these things is through mediation but know that if in the event that doesn't work out, if you have a family law case, there are other ways to address pet custody and a judge will hear it and a judge will help you. So if you have any pet custody issues that you would like our firm to help you with and to come up with a plan for retaining your pet or making sure that a pet stays with a child that pet needs to help while you are separating or divorcing, please contact us birtlaw.com or 630-891-2478 and we'd be happy to talk to you.

[22:48] Erin Birt: Thanks for listening to the Restorative Divorce podcast with your hosts, attorney and mediator, Erin Birt, and our paralegal Tyler Birt. A special thanks to our contributors and to the authors of the many articles that inspire us and keep our clients informed. We hope you enjoyed our deep dive into the separation, divorce or parenting tips covered today that you can use now to help restore yourself. If you strive to improve your life or the lives of your children after a separation or divorce, join us next week when we will cover more Restorative divorce topics. You can head over to Birtlaw.com to get the podcast transcripts, follow us on social media and even find more valuable family law information all for your benefit. Get help today and work with us one on one. Contact us to set up a consultation or planning session to start rebuilding your life today. Enjoy this day and we'll see you next time.

Next Steps for Illinois Pet Custody Issue

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