On October 25, 2021, New York State added an equitable distribution factor to the Domestic Relations Law 236—Part B(5)(d) by adding a new sub-paragraph 15, requiring a court, when awarding possession of a companion animal, to consider the “best interests” of that animal.
In 2013, I had the privilege of representing the Plaintiff in Travis v. Murray, 977 NYS 2d 621 (2013), where Judge Matthew Cooper established a "best for all concerned" standard in pet custody matters. My client's mini-dachshund, Joey, was abducted by my client’s spouse after a business trip, and I filed an emergency motion demanding that the spouse return Joey to her. I argued the then-prevailing law, that my client should retain Joey, as she was the spouse who paid for Joey and for his care. I further cited the emerging law in non-matrimonial pet custody cases and asked the Court to consider “what is best for all concerned” in Joey’s case. Judge Cooper issued a landmark decision on pet custody in that case, using the broader approach, and established a new New York standard of "pets are more than property." However, Judge Cooper’s decision stopped short of establishing for animals the “best interests of the child” approach that the Court considers when making custody and parenting time decisions.
Judge Cooper recently discussed his approach in Travis v. Murray, where he ordered a one-day, “winner takes all” trial to resolve the dispute. Judge Cooper’s decision discouraged the already overburdened Courts from allowing the extended use of judicial resources regarding the best interests of an animal: experts opining on an animal’s best interests; lawyers representing the animal; competing access schedules with an animal; modification of custody and access motions; and post-judgment and enforcement litigation on pet matters.
On October 25, 2021, New York’s Governor Kathy Hochul signed a bill adopting a “best interests of the animal” standard in property distribution of a pet or companion animal. Domestic Relations Law 236—Part B(5)(d), has been amended to add a new sub-paragraph 15 that requires a court, when awarding possession of a companion animal, to consider the “best interests” of that animal. This statute on the equitable distribution of property, pursuant to divorce, has 16 factors the Court may consider deciding the distribution of marital property and debt. Some have expressed concern that the new law opens the floodgates of litigation, where litigants will have to prove and judges will decide “best interest of the animal” factors relative to what an animal is thinking or experiencing.
As a practical matter, the new law adopts a broader, more subjective, more intangible approach to pet disputes. While pets are now “more than property,” the best interests of the animal standard is rooted in New York’s property distribution statute, requiring litigants to establish intangible and subjective factors of the pet’s life, needs, and interests. This new statute will inevitably involve more lawyer time, trial time, and greater judicial resources.
I often hear from potential clients with pet disputes, and I must advise them that unless there is agreement, a trial involving the “best interests” is necessary. Many times, as in Travis v. Murray, there is one party who has removed a pet and will not relinquish custody or access to the animal to the other party, or the parties disagree on the access schedule or medical or practical care of the animal. Under the new law, rather than determine “what is best for all concerned,” the Court must consider and rule on the best interests of the animal.
In Travis v. Murray, the case of Joey the dachshund, under the “best interests of the animal” standard, the Court may have considered how Joey enjoyed living in Maine, where he was secreted by my client’s spouse, to live with the Defendant’s mother, apart from both parties, and the affect of the separation. It may have heard testimony on Joey’s life in New York City, where he was raised. It might have considered which party regularly walked Joey and where Joey slept and who paid for Joey’s food and veterinary care. Competing animal experts might have been consulted. Resolving the matter would certainly have taken more than one day.
It remains to be seen how the changes to the best interests standard and the equitable distribution law on pets will impact pet custody battles in New York.