Pet custody in Colorado divorce cases can add a complex layer to a divorce case. Colorado does not have any specific laws addressing custody, visitation and expenses for dogs, cats and other assorted non-human family members should be handled. This article addresses some creative ways to address pet custody in Colorado divorce cases.
The Legal Framework
Colorado has laws in C.R.S. Section 14-10-124 and C.R.S. Section 14-10-129 regarding “parenting time” and “decision making” allocation for human children. But those laws don’t extend to pets of any kind. Instead, Colorado law treats pets as an “asset” or “property.” Asset division laws in Colorado are contained in C.R.S. Section 14-10-113. That statute says that marital property in Colorado (which in general includes all property acquired during a marriage, with some exceptions for gifts, inheritance, trusts and prenuptial and postnuptial agreement exceptions) are “equitably” divided. That means if the parties cannot agree on a fair division, the judge will decide what is equitable and fair. There is no specific “what is in the best interests of the pet” standard in Colorado.
If you are using Judicial Department Forms for your divorce (referred to as “JDF”) be careful. There are no specific references to pets in the Sworn Financial Statement (JDF 1111 SC) and Supporting Schedules (JDF 1111 SS); nor in the Separation Agreement (JDF 1115 Property Settlement Agreement); nor in the Parenting Plan (JDF 1113). Pet terms will need to be added to those documents.
Factors Considered by the Court
Since there are no specific Colorado laws addressing pet custody, presenting the judge with facts to support the party’s position about pet custody is an important way to help the judge understand why the pet “equitable distribution” should be done in a particular way. Some of the things to bring to the Court’s attention may include:
Primary Caregiver: Judges may, in their discretion, assess who has been the primary caregiver for the pet. This individual is typically responsible for daily care, feeding, exercise, and veterinary care.
Agreements and Documentation: Preexisting agreements, such as prenuptial agreements or written, signed pet custody agreements, may play a significant role in determining the outcome of the case.
Emotional Bond: Judges may, in their discretion, consider the emotional bond between the pet and each party. Evidence of a strong and meaningful connection can sway the court’s decision.
Living Arrangements: Judge may, in their discretion, take into account each party’s living conditions and the pet’s suitability in those settings. Factors like a safe and secure environment, access to a yard or suitable living space, and any other relevant aspects could be considered.
Financial Responsibility: Judges may, in their discretion, review the financial responsibility of each party when it comes to pet-related expenses, such as food, grooming, and medical care.
Whether the Parties are Capable of Making Joint Decisions for the Pet: If both parties are willing to cooperate and share responsibilities for the pet, this can be an ideal outcome.
Is Joint Custody of Pets Possible in Colorado?
Joint custody of pets is possible in Colorado, but is generally inconsistent with the concept that the role of the court in a divorce case includes severing joint interests so that the parties do not continue to remain entangled with each other.
If the parties have children together, it is possible that a court may decide that the pets will travel with the children for parenting time if both parents are able to have the pet in their homes. An equitable distribution which includes joint custody of pets should also address how the costs for the pet will be handled, and how decisions about things like veterinary care, training, and end of life decisions will be made.
It is not likely that a judge will want to create a plan where the judge has to make those kinds of decisions if the parties cannot agree. If the parties agree to joint decision making and joint physical custody of the family pets, it would make sense to have a neutral private decision maker appointed by the parties so that disputes can be kept out of court. That kind of decision maker is referred to as an arbitrator.
One proactive step couples can take before the divorce process begins is to create a pet custody agreement. These agreements outline the roles and responsibilities of each party regarding the pet and can serve as a valuable reference in case of divorce. Additionally, updating your pet’s microchip and registration information can help establish ownership and responsibilities in case of disputes. There is no specific Colorado legal precedent for a pet custody agreement in advance of the divorce case. That kind of agreement might be considered a premarital or post marital agreement (prenuptial or postnuptial agreement) under Colorado law. If it is considered a premarital or post marital agreement under Colorado law, then there are many specific requirements that have to be met in order for that kind of agreement to be enforceable.
In Colorado, divorcing couples need to be creative about pet custody issues or else the court is likely to simply award the pet to one party or the other, much like awarding a sofa, TV, or set of dishes to one party or the other. While pets are considered property, the emotional bonds and responsibilities associated with them make pet custody arrangements more nuanced and personal. By thinking outside the box, divorcing parties can prioritize their pet’s well-being during process of divorce, ensuring that their beloved furry or reptilian or avian family members receive the care and love they deserve.