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Bird Custody: What Happens To Your Bird When You & Your Partner Divorce?

Since the law still treats pet birds as property, understanding what will happen to your pet bird post-divorce is crucial.

Margaret Maffai

According to CDC and census data, more than 40 percent of first marriages, more than 60 percent of second marriages and more than 70 percent of third marriages end in divorce. The average age for couples going through a first divorce is only 30 years old!

Blue-and-gold macaw
Courtesy of Scott and Dee Schmitz of Redmond, Oregon
Divorce courts may view birds as personal property similar to furniture or art.

Research, and plain common sense, shows divorce is tough on everyone, particularly children. Family law, or domestic relations law, the field dealing with divorce and custody, aims to separate feuding parents as smoothly as possible, while protecting the best interests of children. However, the legal system has yet to catch up with the thinking of modern American families regarding their family pets.

Know Your Rights As A Pet Parent
A 2012 poll found that 91% of pet owners consider their pets to be family members. LGBT families are even more likely to own pets and tend to consider them family members at comparable rates. However, in the legal system, pets are still considered personal property.

Family law judges try to disentangle married couples from each other as completely as possible when it comes to finances and property. The goal is a clean break to prevent the problems of high stress, poor communication and tense emotions that continual interaction could keep bringing up between two people who have proven they cannot get along.

Therefore, whereas courts will ensure that both parents can spend time with the kids after a divorce, a judge would be very unlikely to order a "pet custody” provision in a divorce judgment. If the parties cannot come to an agreement about who should "get” the bird in the divorce, just like with the beloved paisley suede La-Z-Boy or the pearl-encrusted banana hammock, the judge will simply award the bird to one parent or the other.

Pet birds, with their high intelligence, emotional bonds with their owners and need for stability, will no doubt be strongly affected by divorce. They will not only be sensitive to disruption in their daily routine, but will also respond to the emotional turmoil of family members caring for them throughout the ordeal. After the divorce is final, you can’t explain to your bird that daddy just lives in a different house now. The parent that is not awarded the bird will have no right to see it or spend time with it after the divorce is finalized.

Talk To Your Lawyer
If you are heading for divorce, or you are already there, and you think it is important for both of your bird to spend time with both owners after the divorce is final, you should be sure to explain your wishes to your attorney, or— if you are representing yourself—to the court staff and the judge. Judges will consider pre-existing agreements between the parties, but can still overrule them in family court. You and your spouse can write up your own agreement for how to share time with your bird, but if you want it to be enforceable by the courts later, you should talk to a lawyer about how to structure an enforceable property sharing agreement in your state.

Even though these agreements are usually included as provisions in divorce judgments, as contractual property sharing agreements or even as "pet trusts,” they can mirror the "parenting time” schedules that parents may be awarded with regard to children after divorce. Melissa Bond, a Doylestown, Pa. attorney who handles family law cases, explains that in her experience: "Most of the time visitation is week on, week off. It could also work so that one parent has visitation every other weekend and then a day or two in the off-week if there is mutual agreement.” An agreement may also include a right of first refusal, which gives the other owner the right to bird-sit if the custodial owner is going out of town.

You May Face Resistance From Judges
Judges have a lot of discretion in domestic relations matters and how pets are handled in divorce cases will vary widely from state to state, county to county, and even from judge to judge. Some judges might even refuse to sign a stipulated divorce judgment (one that has already been agreed to by the parties) that includes a "pet custody” provision. Much of court time and resources are already devoted to refereeing parenting time disputes between divorced couples. Judges are reluctant to take on the responsibility of regulating pet parenting time as well and worry that allowing such provisions into divorce judgments will have divorced pet owners back in court in no time for help with modifying and enforcing their visitation schedules.

Bare-eyed cockatoo
How pets are handled in divorce cases will vary widely from state to state, county to county, and even from judge to judge.

If a judge must award a bird to one owner or the other, several factors could come into play. A judge will consider whether the state is a community property state or an equitable division state, and whether the bird is separate property or marital property. If the bird is marital property – acquired by the couple together during the marriage – and it is an equitable division state, the judge could base her decision on a number of considerations. Equitable means "fair,” rather than "equal” so the judge will try to divide the couple’s property fairly. This means consideration of evidence of the fair market value of the bird, as well as the rest of the marital property.

However, the divorce court should also hear evidence of the bird’s special value to each of the parties. A New Jersey court overturned a lower court’s decision not to consider a woman’s evidence about the sentimental value of her pet on the grounds that pets are just property, comparing the value of pets to "heirlooms, family treasures, and works of art.” The court explained: "The special subjective value of personal property worthy of recognition by a court of equity is sentiment explained by facts and circumstances … that give rise to the special affection.”

Why You Should Talk To Your Partner About Bird Custody Long Before A Potential Divorce
Consider discussing your feelings about sharing bird custody and visitation with your partner early, before there are serious problems in your relationship. If you one day do divorce, make sure you tell your lawyer and the judge that your bird is a priority. But remember, property division in divorce can be about horse trading — or in this case, bird trading — so you may have to take your spouse’s priorities into consideration as well, and be ready to negotiate! 

Leaving Abusive Relationships
A restraining order to prevent abuse might also result in one partner not be able to see the bird during the divorce.

However, in many cases, victims of domestic abuse are too afraid to get a restraining order. Abusers may use threats to pets to keep their victims in the relationship. An abuser might even register his partner’s bird under his name with the vet and the county in order to keep control over her. Domestic violence shelters often do not allow pets. Sometimes shelters have arrangements with pet foster families to care with the dogs or cats of abuse victims but it can be difficult to find a placement for a bird or birds in an emergency.

If you are setting up a safety plan to leave an abusive relationship and it is important to you to bring your bird, be sure to talk to your local shelter, hotline or other domestic violence professional about options for temporarily re-homing your bird in your area.

Want to know more about bird legal issues? Check out these articles: 

Long-lived Birds: 7 Easy Dos and Don’ts for Planning for the Future
Therapy Birds: "Emotional Support Animal” Or Merely a Pet?

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Posted: November 14, 2014, 10:00 a.m. PDT

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