As published in the May/June 2023 issue of the Tennessee Bar Journal
With pet ownership on the rise following the pandemic, the Tennessee General Assembly considered Tennessee HB467/SB568 during its most recent session, which sought to dictate the custody and ownership of our furry and not so furry friends when married pet parents go their separate ways.1 While the bill failed in the Children and Family Affairs Subcommittee of Civil Justice Committee, there is a good possibility that a similar bill will be presented in the future.
While pets have been treated as mere personal property akin to a piece of furniture in divorce and legal separation actions, Tennessee HB467/SB568 asked courts to take into consideration the “wellbeing” of the animal in determining a custodial arrangement.2 The proposed amendment to Tenn. Code Ann. Sec. 36-4-121 stated: “The court may provide for the ownership or joint ownership of any pet or companion animal owned by the parties, taking into consideration the well-being of the animal.” The proposed statute did not specifically define a “pet” or “companion animal,” but one could assume a pet or companion animal would encompass any domesticated creature living in our homes. Looking to Tennessee’s penal code, which already provides for a prohibition on having custody of animals in instances of abuse, “companion animal” means any non-livestock animal as defined in Section 39-14-201(3).”3 Further, under Tennessee’s penal code, “animal” means “a domesticated living creature or a wild creature previously captured.”4
The custody of pets is not necessarily a new issue in family-related matters in Tennessee. It is often a hot topic of discussion during settlement negotiations. Additionally, under Tennessee’s Domestic Abuse Act, providing for “the care, custody, or control of any animal owned, possessed, leased, kept, or held by either party or a minor residing in [a] household” is within the scope of a protection order.5
Similar pet custody laws have gained traction in several other states in the context of divorce and legal separation proceedings, including in Alaska, New York, New Hampshire, Illinois, Maine and California. Unsurprisingly, the breadth of direction and factors a court should weigh varies greatly from state to state. Under Section 2605 of the California Family Code, “the court…may assign sole or joint ownership of a pet animal taking into consideration the care of the pet.”6 The statute further provides that: “‘Care,’ includes, but is not limited to, the prevention of acts of harm or cruelty, as described in §597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.” In contrast, Maine defines companion animal and sets forth seven specific factors a court should consider, from the animal’s basic daily needs, to the amount of time each party has spent with the animal, to the emotional attachment of any child in the household.7
More similar to the proposed Tennessee bill is pet custody in Illinois. Under Illinois’ § 750ILCS 5/503 (n), a court “shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties,” and “[i]n issuing an order … the court shall take into consideration the wellbeing of the companion animal.”8 However, the Illinois legislature went a step further, providing that “‘companion animal’ does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.”
If the proposed bill were enacted, family law practitioners would still be left with the arduous task of determining what exactly should be considered and presented to the court when it comes to the welfare of the family’s more prized possession. Is the wellbeing of an animal best served by going back and forth between two houses with minor children or should the family cat’s interest in sunbathing in his favorite window be the primary factor when it comes to his own wellbeing? Would courts look at the work schedule of each party when determining whether the welfare the pet is best served by being walked by his owner versus a dog walker or going to doggy daycare? Undoubtedly, the determination of who should be awarded ownership or joint ownership of a family pet in Tennessee will include practical and emotional factors with or without the proposed bill.
MARLENE ESKIND MOSES is a partner at Gullett Sanford Robinson & Martin, and formerly was manager and founder of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is the immediate past president of the International Academy of Matrimonial Lawyers and is on the executive committee of the American College of Family Trial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.
ANSLEY OWENS TILLETT practices law in Middle Tennessee and is a graduate of Belmont University College of Law. Tillett is part of the family law practice at Gullett Sanford Robinson and Martin PLLC in Nashville and co-chair of the NBA Domestic Committee.
NOTES
1. Tennessee Senate Bill 568. www.capitol.tn.gov/Bills/113/Bill/SB0568.pdf.
2. Tennessee Senate Bill 568. www.capitol.tn.gov/Bills/113/Bill/SB0568.pdf.
3. Tenn. Code. Ann. Sec. 39-14-212(b)(2).
4. Tenn. Code Ann. Sec. 39-14-201(1).
5. See Tenn. Code Ann. Sec. 36-6-606 (a)(9).
6. Cal. Fam. Code. § 2605. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=2605.
7. See 19-A MRSA §953, sub-§10.
8. 750 Ill. Comp. Stat. 5/503 www.ilga.gov/legislation/ilcs/documents/075000050k503.htm.