Pets in Family Law Cases

No. Texas courts will not order pet custody or visitation because pets are considered property. Read about Texas divorce cases involving pet ownership in Arrington v. Arrington and Oldenburg v. Oldenburg.

However, spouses can agree to include a shared custody or visitation schedule for pets if they want. The terms for care and visitation with the pet must be included in the spouses’ agreed final divorce decree. Speak to an experienced family law attorney if you are interested in this type of agreed arrangement.

Texas law places property into two separate categories: separate property and community property.

• If a spouse inherited property, owned property before marriage, or was gifted property during the marriage, including gifts from the other spouse, then that property is considered separate property. See Texas Family Code 3.001.
• Property acquired by either spouse during a marriage, excluding separate property, is considered community property. Texas Family Code 3.002.

During a divorce, property, and debt must be divided between the spouses. You can read more about property and debt division here. This includes which spouse will have ownership of any family pets.

Spouses can agree to the division of their property and debts. They can do this through mediation or an informal agreement. If you and your spouse agree on a property and debt division and do not have minor children, you can use the forms for an Agreed Divorce here.

If you and your spouse disagree, then the judge must decide which spouse will keep the family pet. If one spouse owned the pet before the marriage, received the pet as a gift, or inherited the pet, then the pet will likely be that spouse’s separate property. That spouse would then keep the pet after the divorce. But, if the pet came into the family during the marriage, it would likely be considered community property, and the judge will decide which spouse keeps the pet. 

A judge must decide what is “just and right” in a property and debt division. See Texas Family Code 7.001. In making this decision for pet ownership, a judge may consider which spouse found or picked out the animal, who cared for the animal daily, and who made veterinary choices for the pet. The judge’s decision on which spouse keeps the pet will need to be included in the divorce decree.

If your divorce was finalized in the last 30 days, then you could file a motion to modify, correct, or reform the decree and ask the judge to make orders for pet ownership. See Texas Rule of Civil Procedure 329b. For pet ownership, a corrected order should include the following:

• Which spouse was awarded the pet, along with any other pet property (e.g., food, bedding, toys and accessories, equipment, veterinarian records);
• Where the pet is currently located, including the specific address;
• The date, time, and location the pet and other pet property should be turned over to a spouse;
• If law enforcement may be permitted to assist in the retrieval of the pet; and
• What will happen if the spouse ordered to turn over the pet refuses to do so.

If 30 days have passed, and a pet was not included in the final property division of your decree, then you can file a suit requesting to divide property not awarded to a spouse. Post-divorce, there is a two-year period in which a suit to award undivided property can be filed. You should speak with a family law attorney to help you understand the time limitations and process. See Texas Family Code 9.201 through 9.203.

If your ex-spouse will not follow the decree and give you the awarded pet, you can file an enforcement of property division lawsuit. The enforcement lawsuit allows you to request the judge to order your ex-spouse to follow the final decree of divorce. The enforcement lawsuit would be a new, original lawsuit. You will need to pay a new filing fee and get a new cause number in the same court that rendered your divorce. See Texas Family Code 9.001. A suit to enforce a property division must be filed no later than two years after the date the decree was signed. Texas Family Code 9.003. Speak with a family law attorney for guidance on any time limits.

As part of the enforcement, the judge makes further orders to enforce the property division of the decree. The judge may clarify how the property division will happen but cannot change or alter the property division in the decree. See Texas Family Code 9.006 and 9.007(a).

The court or a party can also request a clarifying order as part of the enforcement. If the judge finds the division of property in the decree is not specific enough to enforce, then the judge can make a clarifying order. This clarifying order will have specific terms for each spouse to follow the original property division. It will also include a reasonable time for each spouse must comply with the order. See Texas Family Code 9.008.

The enforcement or clarification order should include the following:

• Clarify which spouse was awarded the pet, along with any other pet property (e.g., food, bedding, toys and accessories, equipment, veterinarian records);
• Where the pet is currently located, including the specific address;
• The date, time, and location of the pet and other pet property should be turned over to a spouse;
• If law enforcement may be permitted to assist in the retrieval of the pet; and
• What will happen if the spouse ordered to turn over the pet refuses to do so.

Remember that a property division enforcement lawsuit is only for property included in the decree and awarded to a spouse. Read more about enforcing a property division.

Yes. If your ex-spouse denies access and you are unable to enter your residence or former residence to retrieve personal property awarded in the decree to you or your minor, including a pet, you may apply for a writ. This “writ authorizing entry and property retrieval” authorizes you to enter the residence along with a peace officer to retrieve the specific item of personal property, including your pet. Texas Property Code 24A.002(a).

The application must include if the pet or other personal property was listed in a decree. If it was, then the court that granted your divorce decree could make the order for the writ. This is a new law and applies only to applications filed on or after September 1, 2021.

For assistance with applying for a writ authorizing entry and property retrieval, speak with an experienced family law attorney. Read Getting Your Belongings from Your Former Home.

Under the Americans with Disabilities Act (ADA) and Texas law, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability. See Texas Human Resources Code 121.002(1). If your pet is a service animal, the pet is still considered property under Texas law.

If your pet is a service animal, you must ensure that ownership is addressed in the property division of your divorce decree. If your child has a service animal, your court order should include which spouse will have ownership and be responsible for the service animal. The court order should also address whether the service animal needs to go with the child in between homes for visitation. Talk to a family law attorney if you need help drafting an order to include language about your child’s service animal.

Beginning September 1, 2021, Texas Property Code 24A.002(b)(4)(J) permits a “writ authorizing entry and property retrieval” for assistance animals or service animals, as defined by Texas Human Resources Code 121.002, used by the applicant or the applicant’s dependent or minor child.

No. Neither the ADA nor Texas law recognize emotional support animals as service animals.  These terms are used to describe animals that provide comfort just by being with a person. Because the animals have not been trained to perform a specific job or task, they do not qualify as service animals under Texas law and the ADA.  

Still, these animals can provide therapeutic benefits to children or their owner. Divorcing spouses or separating co-parents should include what will happen with these pets in any of their court orders. If parents agree that a child would benefit from having their emotional support animal during all periods of possession, they can include that agreement in their court order. You should speak with a family law attorney who can guide you through this process.
 

You must read your court order. If your court order does not address a child’s pet going on visits, then the other parent can refuse to allow the child’s pet to come along. Parents must follow their court order for visitation. 

If a child’s pet is not in court order, and you want to include terms for the child’s pet as part of the visitation schedule, you can file a modification.

A commonly used attachment to custody orders in Texas is the Children’s Bill of Rights, which briefly addresses pets. This bill of rights states that “Each parent will permit the child to carry gifts, toys, clothing, and other items belonging to the child with him or her to the residence of the other parent or relatives or permit the child to take gifts, toys, clothing, and other items belonging to the child back to the residence of the other parent, as the case may be, to facilitate the child having with him or her objects, important to the child. The gifts, toys, clothing, and other items belonging to the child referred to here mean items which are reasonably transportable and does not include pets (which the parents agree are impractical to move about).”

But many parents know and agree that children can benefit from access to pets for comfort and security. This is true if the child gets used to a new home after their parents have separated or divorced. Depending on the pet, parents may agree that the child’s pet can go with the child to each parent’s home during the child’s visit. Parents can enter into a Rule 11 agreement while their case is pending to address a child’s pet, and they can include their agreement as long-term in their final order. Parents should speak to a family law attorney about including these agreements in a court order.

Texas law recognizes that pets can be a part of a family or dating violence situation.

In a protective order, the court may prohibit a party from removing a pet, companion animal, or assistance animal, as defined by Texas Human Resources Code 121.002, from the possession or actual or constructive care of a person named in the order. See Texas Family Code 85.021(1)(c). 

The court can also prohibit the person found to have committed family violence from harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal (defined by Human Resources Code 121.002(1)) that is possessed by or is in the actual or constructive care of a person protected by an order or by a member of the family or household of a protected person under the protective order. Texas Family Code 85.002(b)(7).

Read more about protective orders here. If you are in a family or dating violence relationship, you should talk to a family law attorney about your options.

Beginning September 1, 2021, the Texas Judicial Branch will allow you to bring your qualified facility dog or qualified therapy dog to your court proceeding. You must first make this request of the court. Then, the judge will order the allowance of your qualified dog. This new law applies to in-person testimony or closed video teleconferencing testimony. See Texas Government Code 21.012(a).

You must prove the dog’s presence will assist you in providing testimony. This could be helpful for children who have to testify. You must also provide proof of liability insurance coverage in effect for the dog. Speak to a lawyer about how to make this request in court.