Ask the County Law Librarian – Pet Custody
My girlfriend and I recently broke up and she has yet been unwilling to negotiate a shared custody agreement over our dog. I would like to start civil proceedings to ensure that I retain custody of the dog should she not become more agreeable to a reasonable compromise.
Can you tell me what paperwork I need to complete and submit to file the case?
A: Although most pet owners consider their dog a member of the family, under California law, pets are considered personal property, no different than a TV or dining room set. The court may make a determination as to the ownership of the property, but cannot get involved in setting up any sort of custody or visitation order for your pet. California law does not give the court authority to make those types of orders. Any determination by the court will be a simple determination of ownership, and will not take your pet’s best interests into consideration.
The ideal situation would be for you and your girlfriend to negotiate a custody and visitation arrangement for your dog. This may be something the two of you can do on your own. At the Law Library, we have resources that may be useful in writing up your agreement. “Every Dog’s Legal Guide” from Nolo Press has a chapter on Dogs and Divorce, which may give you some ideas about workable arrangements. For help writing a very specific agreement, you may want to consider a resource such as “Building Parenting Agreements that Work,” also from Nolo Press. Although this book is intended for child custody agreements, it could also work well for making a pet custody and visitation agreement. It provides sample language for agreements, covering everything from the days and times of visits, to where the child (or pet) would live, who has responsibility for making medical decisions, how visitation exchanges will be made, etc.
When pets are involved, emotions can run high. Because of this, you may want to consider mediation. Mediation is a voluntary process in which parties involved in a dispute work with an impartial party, the mediator, to generate their own solutions in settling their conflict. The mediator’s role is to facilitate communication between the parties, not to impose solutions. Mediators do not advise, take sides or render a judgment. Instead, the mediator will work with the parties to help them reach a mutually acceptable resolution. A mediator may be able to assist the two of you in coming to an agreement that is acceptable to you both, and provides for your dog’s best interests. Private mediators are listed in the yellow pages. Also some lawyers advertise in their phone book listing as providing mediation services. In Sacramento there is the non-profit that provides mediation services: Sacramento Mediation Center, a program of California Lawyers for the Arts.
Ultimately, though, you may not be able to agree to a custody and visitation arrangement for your dog. You may be able to sue for possession of the dog, just like you could sue your girlfriend if she takes your big screen TV when she moves out. To be successful, you must show the court that you are the legal owner of the property, and that your girlfriend has no legal claim to the property. This is usually pretty easy with furniture or appliances. However, it can be a bit more difficult for a pet. Purchase or adoption records, receipts for medical treatment, grooming, etc., may help show that you are the sole or primary owner of the dog. For more ideas about proving your ownership, see http://aldf.org/article.php?id=239.
A case of this type could be pursued in small claims court, since the value of the dog is most likely under the $10,000 limit. Generally, the small claims court is limited to awarding money judgments. In some circumstances, it may be possible to ask the court for “equitable relief,” or non-monetary relief. However, if you request a small claims judgment for equitable relief, the court may instead award a “conditional judgment” wherein your girlfriend is ordered to either give you the dog,
pay you the value of the dog. For more information about equitable relief in small claims cases, see http://www.nolo.com/legal-encyclopedia/free-books/small-claims-book/chapter4-5.html.
Orders of the type you’re asking about can be made in the civil court. This is typically a long and expensive process, and there may not be any fill-in-the-blanks forms to start your case. To start your lawsuit, you must decide what legal theories (“causes of action”) apply to your situation, and write a complaint that matches. For some causes of action, you can use a standard fill-in-the-blanks form. For others you will need to write up the complaint based on samples at the library. You must research the best causes of action in your case. A good starting point is Nolo Press’ “Win Your Lawsuit” or a book such as “California Causes of Action.” Common causes of action include “breach of contract,” “conversion,” and “equitable right to possession,” but these might not apply in your case, and/or other causes of action might apply. For more information, see our Legal Resource Guide on “Filing a Lawsuit” on our website at http://www.saclaw.org/pages/filing-a-lawsuit.aspx.
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