For years, the answer to this question has been, “There is no custody for animals. They are treated as property and divided as such. In theory, if you don’t agree as to who gets the animal, the court could order you to sell the animal and split the proceeds.” This king Solomon type solution usually persuaded the parties that one person should get the animal.
But as of January 1, 2018, Illinois courts will change the Illinois Marriage and Dissolution of Marriage Act.
Even before the divorce is over you will be able to petition for temporary or joint possession of your pet just as you would a child. The courts specifically consider where the pet would be better off.
“Either party may petition or move for the temporary allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.” 750 ILCS 501(f)
If the pet is a service animal, like a seeing eye dog, the pet obviously must go with the party who needs the animal’s services.
“As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Human Care for Animals Act” 750 ILCS 501(f)
The statute encourages the parties to come to an agreement regarding the pet.
“The parties may also enter into an agreement allocating the sole or joint ownership of or responsibility for a companion animal” 750 ILCS 5/502(a)
At the end of the divorce, if the parties are unable to agree as to who will keep the pet, the courts will decide for the parties.
“If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.” 750 ILCS 5/503(n)
It remains to be seen as to how courts will make these determinations? The courts will certainly take testimony of the parties. Will there be a Guardian Ad Litem or Pet Representative to represent “the well-being of the companion animal?” Will there be an in camera interview (a meeting in the judge’s chambers) to see who the pet goes to first.
As you can tell, I am skeptical that judges will consider this statute much at all. Judges also have the power to divide your small personal items like furniture and bric-a-brac and they routinely will refuse to divide those items and insist the parties manage those issues themselves. Of course, the parties always seem to divide their personal items without the help of the courts. I suspect future litigants will do the same when it comes to pets.