Distribution of Pets and Animals in a Divorce

In Illinois courts, pets are treated as not merely pieces of property, but not given the same consideration as children. Courts may award ownership of a pet to a party during the divorce, but will not permit visitation of pets in the same way as children.

The seminal Illinois case regarding pets is In re Marriage of Enders, 48 N.E.3d 1277 (2015). In this case, the court was asked to decide whether pet visitation of the parties' dog could be granted. The Husband claimed his Wife and him agreed to have joint custody of the parties' dog. The Wife however, who was the de facto owner of the dog, denied the visitation. On appeal, the court noted this issue was one of first appearance. As such, the court looked to other courts that had adjudicated this issue for guidance, mainly New York.

Relying on New York case law, the court applied a "best for all concerned" standard, maintaining that "household pets enjoy a status greater than mere chattel." Travis v. Murray, 977 N.Y.S.2d 621, 631 (2013). The best for all concerned standard provides each side would have the opportunity to prove not only why he or she would benefit from having the dog in his or her life, but why the dog had a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other.

However the court made clear it would not award visitation for fear that it would serve as an invitation for post-divorce litigation.

Along with the Travis case, the Illinois appellate court also looked to the only statutory definition for a dog owner in Illinois is provided by the Animal Control Act. 510 ILCS 5/2.16. Pursuant to section 2.16 of the Animal Control Act, an owner is defined as "any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian."

Applying the Travis case and Illinois statutory law, the court in Enders, found that the Wife was the dogs' owner under this definition because the dogs were left in her "care" when the Husband moved out of the marital residence. As a result, she is the one who "keeps or harbors" the dogs and has them "in [her] care" and acts as their regular "custodian."

Takeaway Points:

  1. Illinois Courts will not permit pet visitation.
  2. If an Illinois court is faced with determining custody of a pet, it will apply:
    1. the "best for all concerned standard"; and
    2. the Illinois Animal Control Act for a liet owner.