Who Keeps the Dog? Divorce Advice from a Pet Custody Expert

Written by Karis Bryen, CDBC, Accredited Family Law Mediator


Anyone who works with family pets is likely to end up with clients in the heartbreaking situation of getting a divorce and needing to decide who keeps the dog. For those of you who have had this experience already, or will in the future, this article is designed to give you, as a dog professional, insights and tools when faced with this situation so you can best assist your clients to make sound decisions that puts the wellbeing of the dogs* first.

(*In this article I will be referring to dogs. However, the information applies equally to other family pets, including cats, parrots, etc.)

The suggestions offered here are primarily about helping people make smart decisions when their relationship ends and less about dog behavior. Anyone whose work involves assisting owners with dog behavioral challenges will know that skill with human beings is as essential as our expertise and knowledge of dogs. Only when you can empathize, communicate and work respectfully with people who are having a hard time managing their situation can you effectively impact your human clients enough to teach them how to work with their dogs.

A short background on me: I am a Certified Dog Behavior Consultant with 27 years of experience working with challenging dogs and their human families. A few years ago, I noticed I was encountering dogs whose behavior issues originated from a divorce decision that didn’t turn out the best for the dogs involved. I saw a need for people to understand what it means to look after the best interest of the dog in a divorce. I got my accreditation as a divorce mediator and now bridge two worlds, dog behavior and divorce mediation, to guide people to make sound decisions about their dogs. A large part of my work is training other divorce mediators and lawyers about the basics of dog psychology so that they are empowered to help their clients themselves. The teaching I do for non-dog-professionals is primarily geared toward understanding how to best meet the needs of dogs themselves, instead of humanizing dogs and treating them the same as children.

Allow me to group people getting divorced into two very general categories: amicable or hostile divorce. Of course, every divorce is unique, but by “amicable divorce” I am indicating people who are willing to negotiate and actively find resolution that suits both people and where there is communication happening between them. By “hostile divorce” I mean people where the dynamics have broken down in such a way that going to court may become inevitable, there is no more communication or good faith negotiation, but instead more threats or intimidation via lawyers –  a stereotypical “bad” divorce.

What the law says about pets

The way pets are regarded in a courtroom varies depending on where you live. At the time of this writing Spain, Portugal, France as well as four states in the U.S. (California, Illinois, Alaska, and New York) have the most progressive laws when it comes to family pets. In these places animals are legally considered sentient beings rather than objects owned by one partner or the other. This means a family court judge can take the long term wellbeing of the dog into consideration during a custody battle. Here judges are allowed to make decisions, whether to grant shared custody or sole ownership to one person, based on the dog in question and who is the best person for them to live with.

In the rest of the world, including all the other states in the U.S., dogs are technically “personal property” in custody matters. This means that the dog is an object legally owned by one person. They are not legally considered living things with rights to consider. Ownership can be determined by who paid for the dog, the registered owner through a breed organization, or a name on adoption papers. The law is a nuanced subject, but ownership can also be argued through things like the owner’s name on vet records, doggy daycare, pet medical insurance or microchip owner information. Judges here have their hands tied in the sense that even if one partner would be a better fit for the dog, if the other partner is able to prove legal ownership, they will be awarded custody, as per the law.

In the context of divorce or not, this can have devastating consequences for dogs and their owners.

Here is an example from my practice: “Sally” contacted me for advice after she had lost custody of her two miniature Schnauzers. Sally’s ex boyfriend’s mother was a miniature Schnauzer breeder. During their four-year relationship the breeder/mother gave them two Miniature Schnauzer puppies as gifts. On the registration paperwork, both dogs were listed as being owned by the breeder. They were never transferred into Sally or her boyfriend’s name. When Sally broke up with her boyfriend his mother took the then 2- and 3-year-old miniature Schnauzers back, despite their living full time with Sally since puppyhood. The breeder was able to prove ownership because the dogs were registered in her name and no money exchanged hands, and therefore they legally belonged to her.

Sally loved her dogs and doted on them. She was absolutely devastated when she found out she didn’t have legal recourse to fight for her dogs. I’m sure reading this makes your blood boil, and it should! Let this be a wakeup call to advise all your clients to check on their dogs’ records that they are listed as the official owner. For example, if a dog is given as a gift, and purchased or adopted by a loved one, the “wrong” name may be on the papers and the question of ownership can become hazy in court. Be sure to update all paperwork and keep copies of all the information safe.

Unless one of the two people genuinely doesn’t want the dog, people in a hostile divorce situation will likely be guided by their lawyers to fight to keep the dog, regardless of what is best for the animal. I have countless stories of dogs being used as a bargaining chip or emotional blackmail. People can be traumatized when seeing the worst in themselves or an ex-partner come out in a separation. My job is to keep my clients focused on the best interest of their pets, not in getting back at an ex.

In Sally’s situation her ex-boyfriend was shocked and hurt by the breakup. His mother took the Miniature Schnauzers back to hurt Sally, not look after the best interest of the dogs who were most loved and looked after in their home.

Amicable divorce

If you have clients who decide to separate and are committed to making a fair decision about their dog, you can offer them the following suggestions to make what is an inevitably hard process easier. Provided both people are willing to negotiate in good faith, these tips can be applied to almost all separations and can lead to a more peaceful outcome for all involved.

  1. Address the custody of dog(s) as soon as possible in the negotiation. The possibility of having to say goodbye to your dog, on top of the relationship ending, can be so traumatic, many people will leave the choice about who keeps the dog to the very end of the divorce process. This tends to make the decision more difficult as the dog then becomes the literal end point, a very emotional representation of the relationship being finished. Or if the negotiations have moved from agreeable to more antagonistic it can be very difficult to separate the needs of the dog from the emotions of the people. Suggest to your clients that they address the dog issue before things potentially get too complicated, turn sour, or become drawn out.
  2. Shared custody. The idea of sharing a dog can seem like the best way to avoid the anguish of saying goodbye to a dog, but not all dogs are able to cope well with a life split between two homes. It is rarely the best option for a dog, although many do learn to live with it.

Each dog needs to be looked at individually, but broadly in my experience, rescue dogs, flock guardians, working/guarding breeds, toy breeds, and older dogs often struggle with having two homes. After starting a shared custody schedule, many dogs I work with start exhibiting behaviors like excessive chewing, pacing, or separation anxiety issues, or individuals who were previously friendly become prone to aggressive displays toward other people and dogs. For dogs showing obvious signs of stress, shared custody is not a fair arrangement.

Shared custody is most likely to be successful with younger, very well-adjusted, confident, and easy-going dogs. Equally important: How is the dynamic between the two partners after their separation? If the handoffs between the partners are angry and heated every time, this is not a fair situation for dogs. Some people utilize a dog walker to do the transitions between homes if interactions are too unpleasant, but the situation otherwise worked for everyone involved. Similarly, having one person drop the dog at daycare and the other pick them up can minimize contact between the exes.

To minimize the transitions, suggest longer periods of time with each person rather than shorter ones. Two weeks or even one month on and off often work well. If there are no human children involved, it is helpful to point out that in a shared custody situation they must remain involved with their ex-partner for the remainder of their dog’s life. Is that something they really want? Do they want to be in frequent contact, know where each other live, or learn when they get into new relationships?

If you have worked at all with rescue dogs, or dogs who have been rehomed, you will know that dogs often adjust to new situations better than the people who had to say goodbye to the dog. I am not referring to dogs who have come from serious trauma, but a dog who has come from a stable background and moves to a new loving family; they may be a little confused or seem lost for a few days, but they will normally settle happily into a new caring home. The same goes for divorce. The human tendency is to think that dogs are unable to say goodbye to one of their guardians, that it would be cruel if they no longer had contact with a person who has been in their life for so long. In the same way that a rescue dog can adjust to a new home, a dog whose owners divorce can adjust to living without one of them.

If there are multiple dogs in the household, they don’t automatically need to stay together. Here I take a very individual approach to each household. The ages, temperaments, and sizes of the dogs need to be taken into consideration, as well as, of course, the living situations post-divorce. As a rule of thumb, pairs of dogs that have very different ages, sizes, or temperaments can more fairly be separated if that is the best result for their guardians. If the dogs are of similar energy levels and age who consistently engage in the same activities (i.e., energetic dogs who play together regularly or older and more sedate dogs who rest close to each other) it might be kinder to let them live together. For example, a 3-pound Yorkie and 80-pound Rottweiler who don’t engage much socially can likely be separated without much trauma. Whereas a 10-year-old pair of Dachshunds who have been together their whole lives or a Dalmatian and Labrador who are close in age and always roughhouse with each other might struggle much more being separated.

Here are two brief cases to illustrate:

 “John” and “Mary” contacted me when they were getting divorced with two dogs: a Jack Russell terrier and fox terrier cross. The JRT was 12 years old, had deteriorating health issues and was on pain medication for arthritis. The younger dog was 2 years old and a very typical robust terrier type, full of life and constantly trying to solicit play from the older dog who rarely reciprocated. Mary started our session intent on getting full custody of both dogs. She felt strongly that the dogs had been together for the last two years and that separating them would be unfair. John wanted custody of the older dog and was prepared to give Mary full custody of the younger dog. In working through their situation, Mary was able to understand that for the JRT living as an only dog would be a relief for him; this old boy wanted a 10-minute walk around the block in the morning and then to sleep in the sun most of the day whereas the younger dog wanted much more play than the older dog could give him. Living together was frustrating for both dogs, who either wanted to be left alone or play all the time. John and Mary agreed that the two dogs could be happy living in separate homes. I gave her a program of enrichment and exercise for her younger dog including regular trips to the dog park to run with dog friends and other appropriate stimulation at home to keep his mind busy.

A divorce attorney consulted with me on this case: “Sarah” and “David” had two Huskies who were 1 and 2 years old at the time of their divorce. David wanted to split up the dogs; his point of view was that it was only fair that each of them leave the relationship with a dog, because things should be separated 50/50 like the rest of their property. Sarah was adamant that the dogs be kept together as they were wonderful playmates with a very strong bond. This fell into my definition of a hostile divorce where having dog-focused negotiation was not possible. David took Sarah to court to fight to split the dogs so he could keep one. Many months and lots of money later, Sarah was able to firmly establish ownership and keep custody of both dogs.

Expect an adjustment period, for your human clients and their dogs. The dogs may respond to their owner’s stress or a change in living arrangement by engaging in chewing, barking, or other difficult behaviors that were not previously an issue. Try to be proactive with your clients during a divorce/post-divorce period. Ensure that the dogs have plenty of age- and breed-appropriate exercise, and opportunities to use their mouths appropriately. For some people it is very helpful to get outside support in the form of a dogwalker or doggy daycare if they are too overwhelmed to exercise their dogs as normal. This is not a good time to start a behavior modification plan or begin a brand-new training program to learn a new skill with a dog. However, it is a great time to practice activities or training games that your dog already loves and that are a source of enjoyment, not pressure!

Working with pet custody can be heartbreaking. Even the best solution often involves someone saying goodbye to a beloved pet. If the trauma is minimized for all concerned, people and animal alike, and the dogs end up in the best possible home, then I feel I have done my job. Divorce is understandably a very emotional time. My hope is this information can empower you to support your clients in the best way possible in what can feel like an impossible time.

Karis Bryen, CDBC & Accredited Family Mediator, is the founder and owner of Who Keeps the Dog, Pet Custody Specialist. She works worldwide as an educator and speaker on the subject of pet custody. Her practice sees her working with clients in different roles: either in a neutral role between a separating couple to help them find fair solutions for their dogs, offering assistance to an individual in consultation with their lawyers, or providing behavioral support for dogs showing changes in behavior that may arise around the time of divorce.

A speaker at the American Bar Association and the Association of Professional Family Mediators, Karis has been featured in the Associated Press, VICE News, ABC News and Australian Dog Lover Magazine, to name a few.

Karis has been working with dogs professionally since 1996 using evidence-based positive methods. Her work has ranged from puppy school to competitive agility training to highly challenging behavior cases, and everything in between.

TO CITE: Bryen, K. (2022) Who keeps the dog? Divorce advice from a pet custody expert. The IAABC Foundation Journal 24, doi: 10.55736/iaabcfj24.3