Commentary: Pet custody in divorce cases: Pure property v. best interest of the animal

Divorce is rarely simple. Missouri courts are accustomed to navigating the complexities of dividing property and, in cases involving children, applying the “best interest of the child” standard to determine custody arrangements. Yet in cases involving pets, courts face a unique challenge. Should a dog or cat be treated like a car or couch under the rules of equitable distribution? Or should the law recognize the living, sentient nature of animals and the deep bonds they share with humans?

This tension lies at the heart of pet custody disputes in Missouri. Although historically animals were firmly placed in the category of personal property, modern Missouri case law and emerging national trends are grappling with whether that framework adequately addresses the realities of modern pet ownership.

Case Spotlight: England v. England

Missouri follows an equitable distribution model in divorce cases. This means marital property is divided fairly, though not necessarily equally, based on contributions, length of the marriage and other financial considerations. Pets, under this framework, are considered property. As such, courts have limited authority in resolving pet custody disputes.

The case England v. England, 454 S.W.3d 912 (Mo. App. W.D. 2015), is the leading case on pet custody disputes in Missouri and highlights the effects of the current pure property approach. In this case, the wife argued she should take custody of the dog because she was the primary caregiver for the dog, she was the one who would walk, feed, and water the dog, and she had an emotional bond with the dog to the point that she would refer to the dog as her “baby.” By contrast, the husband’s argument for custody was simply that the dog was a gift to him alone, and therefore was separate property rather than marital property.

The court in England determined the dog was marital property rather than the husband’s separate property, noting that if the husband’s gift argument had prevailed, no consideration of care, attachment, or emotional bond would have been relevant. Because the dog was marital property, the court was able to review the equities and use its discretion in distributing property.

The case highlights the limited authority Missouri courts have in resolving pet custody disputes. Under Missouri law, there is no provision for joint custody of animals. In cases involving pet custody disputes, the judge must award sole custody of the pet to one party regardless of what might be best for the animal. The ultimate decision regarding who takes custody may come down to a technical property analysis without any consideration for the animal’s welfare or each party’s emotional bonds with the animal.

Balancing Property Rights, Animal Welfare, and Legal Consistency

Two central questions loom for Missouri courts and lawmakers: (1) Should Missouri law move beyond strict property classification? Treating pets purely as property may ignore emotional reality for families. Failing to account for that risks decisions that many feel are unjust to litigants; and (2) How should courts balance discretion? Expanding judicial discretion to consider caretaking and welfare may allow for more humane decisions, but also risks inconsistent outcomes and pets being unjustly removed from their owners.

Some states, such as California, New York, and Illinois have laws permitting courts to consider the welfare of the animal in divorce proceedings. Under these laws, such as the Illinois Dissolution of Marriage Act, 750 ILCS 5/503(n), courts may order joint ownership and shall take the well-being of the animal into consideration. This allows the court to examine factors such as the primary caretaker, the emotional bond each person has with the animal and the pet’s living condition. These laws help ensure pets’ well-being and acknowledge their special status as more than mere property but generally stop short of treating pets like children.

Some scholars argue Missouri should follow Illinois’s example. Some go further and advocate for a true “best interest of the pet” standard, akin to child custody. Others suggest a hybrid approach, treating pets as “special property” that warrants more than a financial assessment. Critics of reform, however, warn against blurring doctrinal boundaries. They argue expanding custody-style analysis to animals could create unpredictability in litigation and open the door to broader claims involving animals outside the family context.

Conclusion

The treatment of pets under Missouri law sits at the crossroads of tradition and change. The property paradigm provides predictability but may not capture the lived experience of families who see their animals as more than assets. For now, Missouri courts remain bound by the principle that pets are property. But the growing recognition of their emotional and familial significance suggests reform may not be far off. Whether through incremental case law developments or legislative action, the challenge for Missouri is clear: how to respect established legal doctrine while honoring the bonds that make companion animals part of a family.

Joseph DaVault is the Associate Executive Director for the Missouri Alliance for Animal Legislation and serves as Vice Chair of The Missouri Bar’s Animal Law Committee.