Pet Custody in Illinois

by Attorney Alexis Simmons

Illinois is unique for pets and divorce. Since January 1, 2018, you can fight for your pet as more than just a piece of property. Prior to 2018, there was no guarantee that a Court would consider the well-being of an animal when awarding one party or the other a dog, cat, or favorite chinchilla in a divorce.

Sections 501 (temporary relief) and 503 (disposition of property and debts) of the Illinois Marriage and Dissolution of Marriage Act provide for allocation of a companion animal of the parties:

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. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act. 750 ILCS 5/501(f).

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. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act. 750 ILCS 5/503(n).

As this addition to the Act is fairly new, there are not many cases that address it. However, it is clear from the plain language of the statute that companion animals are to be addressed by the court as more than chattel, and in a way that is distinct from the traditional division of marital assets, where the Court is balancing which party gets property, typically based on its financial value.

Instead, the Court shall allocate either sole or joint ownership and responsibility for the animal between the parties, and the court shall consider the well-being of the animal. Therefore, it is appropriate for the Court to hold a hearing on the well-being of the animal, with regard to which party should have custody.

Despite Section 503(n) being enacted in 2018, the First District in Illinois addressed pet custody and visitation issues in In re Marriage of Enders & Baker, 2015 IL App (1st) 142435. The Enders Court looked to the statutory definition for a dog owner in Illinois, provided by the Animal Control Act. 510 ILCS 5/2.16. The Court used the definition of “owner” in section 2.16 of the Animal Control Act to determine that the owner of the dog was “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” Id. at ¶ 131.

The Court therefore determined that the wife was the true owner of the dogs in this case because they were left in her “care” when the husband moved out. Therefore, the Court reasoned, that she was the one who “keeps or harbors” the dogs and has them “in [her] care” and acts as their regular “custodian.” In contrast, the Husband had testified he lived in an apartment where the lease does not allow pets. The Court therefore determined that the trial court was correct in allowing the Wife to keep the parties’ dogs.

So if you are getting a divorce in Illinois today, and your pets are important to you, make sure you find the right lawyer who knows that pets are worth fighting for. Call now for a consultation or schedule through our website.

Disclaimer: This information is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. It should not be construed as legal advice nor is it a substitute for legal counsel. You should not act or refrain from acting on the basis of any information provided in this post without seeking appropriate legal or other professional advice from a lawyer licensed in your state, country, or other jurisdiction.