The shared pet guard is a relevant theme in Family Law. This is because the connection between humans and pets, often considered members of the family, brought to light the need to regulate their guard in cases of divorce from the tutors.
Of course, justice has adapted to this new perception of pets of strong affective bond with their owners and, more and more, decisions favorable to the shared guard are more common in judicial debates.
The Multispecies Family
The reduction of children per couple is an unquestionable reality in Brazil according to the UN. In a study published in 2023, Brazil follows the global trend of population reduction, with the fecundity rate falling to 1.6 child per couple.
In this context, pets began to occupy an increasingly important space in the family nucleus. Thus, scholars of the Family area as the renowned Maria Berenice Dias began to call such nuclei of multispecies families.
And what changes?
While before the animals – including domestic – were seen as properties, today are perceived as beings that share love bonds. Pets receive more care, care and even birthday parties.
It can be said that the relationship with pets has become so important that many couples consider them as children.
Legal aspects of the Shared Guard
The guard for family law is nothing more than the right of parents to keep and protect their child, to keep in surveillance, to represent him as necessary and to provide the necessary conditions for their development.
And, as incredible as it may seem, there is no specific legislation on animal protection. Therefore, magistrates are worth the analogy in the headquarters of Family Law and this can generate divergent interpretations and inconsistent decisions.
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Legal aspects of the Animal Guard
Law projects on the theme already exist, such as PL 1.058/2011 and PL 1.365/2015. They seek to formalize the possibility of shared custody of pets in cases of litigation divorce.
Such initiatives recognize the importance of affective links between humans and pets, proposing a legal framework that ensures the best treatment of pets.
Thus, the courts have considered the welfare of the animal by deciding on the guard, as they do with the children. In the most common decisions, sharing has been established on the basis of the animal’s routine and the ability of owners to provide adequate care.
Challenges in Regulation
But what is the regulatory process?
The main difficulty in regulating the shared custody of animals is to balance the rights of owners with the welfare of pets. Today, the courts use principles of good customs and analogies with the custody of children to make decisions.
However, the lack of legislative clarity can generate inconsistent decisions. Each case is unique, since the judge has no legal parameter to define what may be well to be for the animal.
In the current scenario, judging cases thus requires, above all, attributes of soft skills (interpersonal intelligence) of the judge, which can cause incongruous and confusing decisions, varying according to the perception of each.
Moreover, there is the question of how to divide responsibilities and costs related to the care of pets. Food, veterinary care and other expenses need to be considered when establishing the division of the guard.
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Historical judgements on shared guard:
Kimi case
The Kimi case, judged by the 4th STJ class in 2018, which considered the judicial regulation of pet visits after the dissolution of stable union, generated an important precedent in the resolution of the theme.
The couple had acquired a dog named “Kimi” from the Yorkshire breed. The conviviviality with the puppy resulted in an intense attachment, generating a true affective bond between the pet and its owners.
The sad reality happened when they divorced: The former companion needed to fight judicially to have the right to visit the puppy.
The outcome occurred in a historic decision taken by a majority of votes, when the collegiate confirmed the judgment of the Court of Justice of São Paulo (TJSP) which fixed the system of visits.
Thus, the former companion was able to live with the yorkshire acquired during the relationship, despite the former wife being with the guard on her behalf.
Dully Case
Another striking decision was made by TJ-RJ in 2015, referring to the puppy Dully.
At first instance, the former spouse lost the guard of the pet dog, but he did not conform and resorted.
In the assessment, the collegiate did not recognize the caller as responsible for the care of the dog, but the first instance decision was changed and the solution was the shared possession of “Dully”.
With this, the former spouse won the Right to stay with the pet in alternating weekends, thus keeping the convivivial with his pet.
The strength of a precedent
And what’s the conclusion, anyway?
The facts scored throughout the text demonstrate an absence of Law on the guard of pets. Such fact generates legal insecurity, since each judge may have a different interpretation of the multispecies family.
In this reality, from the moment that precedents begin to emerge deciding in favor of the shared custody of pets, the possibilities of a positive judgment begin to grow.
Moreover, decisions attest something very interesting and already mentioned: The change in the perception of judicial authorities on the current family structure.
With this, if there is no consensus between the couple on visits and the division of responsibilities with the pet, the chances of achieving the shared guard of a pet are increasing.
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