Pet custody battles are becoming increasingly common. It was reported in 2016 that solicitors have seen a 30% increase in couples fighting about pet custody. This is perhaps because pets are often seen as members of the family. The PFMA published statistics in 2016 showing that 40% of households in the UK have pets. In 2015, the Telegraph reported that 22% of people surveyed considered their pets not just family members, but close family members. Research by the Dogs Trust found that 20% of separating couples felt that deciding who gets the dog was "as stressful" as who gets the children. However, in England and Wales, pets are treated as chattels or personal property, meaning they are akin to fixtures and fittings such as toasters. When there is a disagreement over the ownership of a pet, such as during divorce proceedings, the court will determine the custody of the pet based on property law rules.
Animals as property
There are few decisions reported that deal with pet custody. In RK v RK  EWHC 3910 (Fam), the court considered the ownership of a family dog. The court reaffirmed in this case that animals are property and held that the family pet was akin to personal property. As such, the court refused to make an order on the issue of the dog's ownership.
Clients are often advised to reach amicable agreements when it comes to pet custody. Firms warn that courts can be reluctant to get involved in disputes concerning pets and that courts are unlikely to be swayed by the argument that one party is less suited to caring for the dog. However, as pet custody battles continue to rise, this is an unsatisfying position. Firms such as Slaters Heels have therefore set up arbitration services to help couples act in their pet's best interests.
The best interest test
The 'best interests of the animal' test is based on a similar test used in child custody cases, where the best interests of a child are paramount as under section 1 of the Children Act 1989. This includes criteria which are to be considered.
Any harm which he is suffering, or is at risk of suffering (Section 1(3)(e)).
The capability of the parent to look after the child (Section 1(3)(f)).
The likely effect of any change in circumstances (Section 1(3)(a)).
These are all considerations that could be applied to pets. It is only when considering the wishes of the child element of the test (section 1(3)(a)), which is just one element, that for animals this would be considerably more difficult. However, this is surely no more difficult than ascertaining the wishes of a young child that is yet unable to communicate.
In America, there has been some development of the application of the best interests of the animal test. In Arrington v Arrington 613 S.W. 2d 565 (Tex. Civ. App. 1981), the court refused to apply the test and emphasised that pets are property. Despite this, the judge awarded ownership of the pet to the wife, and visitation rights to the husband. As the academic Rook points out, this is at odds with pets being considered property. If the pet was only property, why would an order for visitation be necessary?
In Re Marriage of Stewart 356 N.W. 2d 611 (Iowa Ct. App. 1984), the court rejected the best interests test and held "a dog is personal property and while the courts should not put a family pet in a position of being abused or uncared for, [they] do not have to determine the best interests of a pet". The court gave pet ownership to the husband, even though the husband had given the wife the dog as a gift and therefore had the better claim under property law. It is interesting that whilst there was a rejection of the best interests test, there was a consideration of the safety of the pet. This approach was supported in two other American cases: Houseman v Dare 966 A. 2d 25 (NJ Super Ct. App. Div. 2009) and Juelfs v Gough 41 P. 3d 593 (Alaska, 2002). Clearly, the courts have some consideration that pets have a special status compared with other types of property.
In Israel, the courts have gone further. In Ploni v Plonit 18 March 2004 (unpublished) in the Ramat Gan Family Court, FC 32405/01, the court adopted a 'good for the animal' test. The court heard evidence from an animal behaviour expert before making its decision.
In Corso v Crawford Dog and Cat Hospital 315 N.Y.S. 2d 182 (1979), a New York court stated that "animals are not property, rather a unique construction existing somewhere between inanimate objects and humans". However, in cases such as Bennett v Bennett 655 S.O. 2d 109, 110 (1995), the court took a pragmatic approach despite that. Limited resources and an already strained Family court system, means practically the courts would be unable to cope with the increase in time and number of cases that would be introduced because of a change in the test for pet ownership. Nevertheless, the current legal status of pets is one that is unsatisfying for clients and one that fails to recognise the special social status that pets are given.