I recently represented the Plaintiff in a divorce, Travis v. Murray, 977 N.Y.S. 2d 621 (N.Y. S.Ct. 2013), involving a pet custody dispute in New York Supreme Court.
The young dachshund, Joey, was the only issue in the parties' very short, childless marriage. Joey was purchased by my client before the marriage, though the parties lived together and were in a domestic partnership at that time. The parties had not spoken since the Defendant removed Joey from my client's apartment while she was away on a business trip.
Previously, under the New York law, pets were regarded as "chattel," or property, similar to a table or piece of art or other property, to be returned to the owner, or reimbursement paid to the party who paid for it, upon presentation of the bill of sale.
Reflecting the dearth of published New York opinions and precedent on pet custody disputes between spouses in matrimonial matters, the case was regarded as one of first impression.Justice Matthew F. Cooper found that the disposition of a cherished family pet in a New York divorce warranted the court's attention and judicial resources, but not as much as a child custody matter might. The judge further declined to apply the same "best interest of the child" standard that applies in child custody cases.
Judge Cooper issued a lengthy decision reviewing the law on pet custody in New York, and throughout the country. As in the recent New York case between unmarried parties, Raymond v. Lachman, the judge applied a "pets are more than property" standard. Judge Cooper ultimately granted the parties a one-day, "winner takes all" trial for both parties to demonstrate what is "best for all concerned" with regard to Joey. The matter was resolved prior to trial.
Here are my reflections on litigating pet custody cases, and the end result:
Try and Work it Out Between You.
Divorce matters involving pet custody, like most divorce litigation, can be emotional, expensive, and the outcome uncertain. Splitting and divorcing parties can benefit from coming together in a safe space to voice and address the issues underlying the legal disputes between them. Before you litigate, see if you can work the issues out with the other side, either informally, or through alternative dispute resolution, such as mediation. Think through, discuss, and perhaps enter into an agreement on pet ownership issues upon buying or acquiring the pet. This is good advice with any joint ownership or undertaking, be it a house, a business, or a partnership, or adopting or buying or a cat or a dog.
Pets Can Be More Than Property.
Judge Cooper's decision recognizes that a cherished pet is part of the family. Yet, we can't know an animal's feelings and preferences, and "what is best for all concerned" is subjective. As a trial is required to present proof on these issues, one must be very sure that expending emotional, financial and other resources to prove the issues at trial, and through the court system, is the best resolution.
Reach Creative Solutions.
Judge Cooper used a "winner takes all" approach, where no visitation or further litigation on the issue of the pet would be sanctioned. He noted that the parties were free to come to their own agreement, though the courts should not accommodate post-judgment litigation upon violations of pet custody and visitation arrangements. However, many divorced and splitting couples can and do reach agreement on support, custody, and visitation issues regarding the family pet. These arrangements are frequently incorporated into divorce agreements and judgments, and they work for many parties. See if you can share or alternate time with the pet, or otherwise work together to keep the cherished animal in both parties' lives.
As the vast majority of matrimonial and family law cases settle and do not go to trial, it makes good sense to see if one can resolve issues surrounding pet custody without extensive litigation. Pursuant to Travis v. Murray, parties can make their own arrangements, knowing more about the Courts' approach to the issue of what is "best for all concerned."