Fighting like cats and dogs? Determining custody of pets in New York State

Throughout time, and especially in today’s society, people have loved their pets like few other things on this planet. Just take a look at the pictures next to your co-worker’s desk or posted on their social media profile. After all, dogs didn’t get the name “man’s best friend” by accident. While blissfully ignorant of the Domestic Relations Law, family pets are often the subject of heated disputes as relationships end and divorce actions are filed.

A recent Supreme Court case from New York County provides a detailed and entertaining review of the subject. Travis v. Murray, 42 Misc. 3d 447 (Sup. Ct. 2013). In Travis, the plaintiff (1) alleged that her spouse wrongfully took their two-and-a-half-year-old miniature daschund named Joey at the time of their separation and (2) sought the dog’s return in the course of an eventual matrimonial action.

By way of background, the parties were unmarried and living together in a New York City apartment when they purchased Joey from a pet store in February of 2011. The eventually parties married in October of 2012 and continued to reside in the same apartment. In June of 2013, while the plaintiff was away on a business trip, the defendant moved out of the marital residence, taking some personal possessions and furniture, but most importantly, Joey. The plaintiff alleges that, after learning that Joey had been taken, the defendant initially refused to disclose the pet’s location and later claimed that he had been lost during a walk in Central Park. The plaintiff filed for divorce in July of 2013, thereafter filing a motion seeking an order (1) requiring the defendant to immediately disclose the dog’s location and return it to her possession and (2) granting her what she described as “sole residential custody” of the dog. After the plaintiff’s motion was filed, the defendant revealed that Joey had never been lost and instead was living with her mother in Freeport, Maine.

Within her motion papers, the plaintiff argued that (1) “Joey [was] her property because she bought him with her own funds prior to the marriage”, (2) she was the one “who cared for and financially supported Joey on a primary basis and (3) “it [was] in Joey’s ‘best interests’ that he be returned to her ‘sole care and custody’.”

In opposing the motion, the defendant argued that the plaintiff had gifted Joey to her as a consolation after having given up her own cat at the plaintiff’s insistence. She further alleged that “she ‘attended to all of Joey’s emotional, practical, and logistical needs,’ and that ‘Joey’s bed was next to [her] side of the marital bed.” Lastly, she claimed that it was in the pet’s “best interests” to remain with her mother in Freeport, Maine where he was “healthy, safe and happy.” Notably, custody of Joey was the only issue before the Court in the parties’ divorce proceeding.

In resolving issues such as the one in Travis, New York’s courts have historically employed a traditional property analysis, whereby the pet is considered a “chattel” (or personal property) subject to equitable distribution under the Domestic Relations Law. This means that if a veterinarian negligently causes the death of one’s beloved pet, the most they can expect in terms of recovery is the animal’s fair market value. Unfortunately for dog owners, aside from pure-bred dogs, the damages in this scenario are relatively minimal.

However, “where once a dog was considered a nice accompaniment to a family unit, it is now seen as an actual member of that family, vying for importance alongside children.” It is this thinking that has led to increasing support for a different analysis, one that is more akin to a custody analysis utilized for children whereby each side is “calling into play such concepts as nurturing, emotional needs, happiness, and above all, best interests[.]” Travis at 451.

In Travis, the Court looked to a prior First Department case involving custody of a cat named Lovey, nee Merlin. See Raymond v. Lachmann, 264 A.D.2d 340, 341 (1st Dept 1999), disapproved of by Dubin v. Pelletier (R.I. Super. 2012). In Raymond, the Court held that:

“Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.”

In Travis, the Court stated as follows:

“Although the opinion by the First Department in Raymond can be read as a firm declaration that household pets enjoy a status greater than mere chattel, the decision, irrespective of its use of language that is in some ways suggestive of a child custody, does not direct that the resolution of a pet dispute be undertaken by engaging in a process comparable to a child custody proceeding. Nor does it state that a court should utilize a best interests standard in determining to whom the pet should be awarded. In fact, the term ‘best interests’ appears nowhere in the decision. Instead, the term that is used is ‘best for all concerned’.”

So, after some further consideration of the practical constraints and requirements that would result from a system where pet custody determinations were made using the same standard and resources as that used for children, the Court in Travis decided to follow the standard set forth in Raymond (“what is best for all concerned”) and ordered a hearing on the plaintiff’s motion.

In conjunction with that standard, each party to a dispute has an opportunity to prove why (1) they personally would benefit from having the subject pet in their life and (2) the pet would be more likely to live, prosper, and be loved in their care (as opposed to the other spouse). In making this determination, the Court may ask questions like: (1) who bore the major responsibility of caring for the pet? (i.e. feeding, walking, grooming, taking it to the veterinarian), (2) who spent more time with the pet on a regular basis?, and (3) why was the pet initially taken from a shared or marital residence?

As people’s affection (and willingness to fight) for their pets only seems to be growing, this is an issue which will undoubtedly arise more frequently in the court system. However, the standard for such determinations will likely vary between jurisdictions (with those in New York City viewing dogs differently than those in Clinton County) and change over time. For most people, the cost, risk and stress of litigation to determine the ultimate future ownership of a pet post-breakup is simply not worth it. Because of this, soon-to-be ex-spouses often address custody of a pet within a marital settlement agreement, providing each party with a custody schedule not all that different from those utilized for children.

If you find yourself in a situation like the one described above and are unsure of what to do, please contact the attorneys of Smith, Dominelli & Guetti LLC at (518) 250-4888 for a consultation.