It’s Christmas morning and your six-year-old daughter discovers that – because she has been a good girl this year – Santa has brought her a puppy, and she could not be more excited to have a new addition to the family! Fast forward to a year later, and you and your spouse are sadly contemplating a divorce. You have agreed on a parenting schedule for your daughter, but you’re not sure what to do about your one-year-old golden retriever, Max. Not only has your daughter loved Max from the minute she laid her eyes on him, but you and your spouse have each developed a strong bond with the furriest member of the family.

Unfortunately, Arizona, like almost all other states, still classifies pets as property for purposes of divorce. Therefore, courts do not have the authority to order visitation schedules for pets as they do for children. If the parties are not married, or were not married when one spouse bought the pet, courts will simply award the pet to the party who purchased it. But in Max’s situation (where the parties acquired him during the marriage) the analysis is less certain. If the parties cannot agree on what to do with a pet, the court will be forced to make a rigid decision that may further exacerbate the tension between the parties and hinder the parties’ relationship with their child.

In working through the delicate situation with Max, the parents should focus on their child and her happiness. Being separated from one parent is already a difficult and emotional transition for a child, but if a child is forced to be separated from her beloved pet, there is a risk of additional trauma. Further, in a case where the pet resides with only one parent, there also exists the risk of severe alienation from the other parent. If at all possible, the parties should agree on a visitation and exchange schedule for Max that is substantially similar to the schedule for their daughter. This will help maintain stability in the child’s life and prevent her from wishing she were at the house of the parent with sole possession of the pet. If the parties have agreed to exchange their child on weekends or evenings, a practical resolution is to exchange the pet during this time so that the pet always travels and resides with the child.

However, many parenting time agreements include exchanges before and after school, which impacts the viability of a family pet being exchanged at the same time as the child. If you have a more complicated parenting situation that makes the exchange of your pet difficult, it may be helpful to consult an experienced family law attorney to provide guidance in this uncertain area.

The parents in our Christmas story should not let a judge decide where Max is going to live, or who obtains this “asset” as part of the division of property. They should do what is in the best interest of their daughter, and allow Max to remain a constant for her during this difficult transition.

About the Author:

Brian H. Merdinger is an Associate in the Phoenix office at Dickinson Wright. He primarily focuses his practice on Commercial & Business Litigation and Family Law. Brian may be reached in our Phoenix office at 602-889-5353 or by email: bmerdinger@dickinson-wright.com. Visit Brian’s bio here.