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Matrimonial Matters: Determining custody of pets in divorce actions

Sara Stout Ashcraft

Sara Stout Ashcraft

With the possible exception of criminal lawyers, matrimonial practitioners hear some of the wildest stories from our clients. Over the past few years a new issue has popped up in matrimonial law — pet custody.

Parties can become as emotionally distraught over who is getting the pet as those who are disputing custody of their children. There have been few cases directly addressing the pet custody issue, but a few months ago in Travis v. Murray (42 Misc. 3d 477, 977 N.Y.S.2d 621 (NY Cty. 2013), Justice Matthew Cooper handed down a well-researched decision regarding custody of a dog.

“People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry.” This is how Justice Cooper opened his decision over custody of Joey, a 2 ½ year old miniature dachshund. The sole issue in the case was which party would get Joey.

Justice Cooper wrote, “It is … obvious that dogs, and household pets in general, receive an ever increasing amount of our time, attention and money. Where once a dog was considered a nice accompaniment to a family unit, it is now seen as an actual member of the family, vying for importance alongside children. … While the dog owners of New York might uniformly regard their pets as being far more than mere property, the law of the State of New York is in many ways still largely at odds with that view. The prevailing law, which has been slow to evolve, is that, irrespective of how strongly people may feel, a dog is in fact personal property — sometimes referred to as ‘chattel’ — just like a car or a table.

Before Travis, according to Justice Cooper, there was only one reported New York divorce case in which “custody” was awarded to one of the parties, C.R.S. v T.K.S. (192 Misc. 2d 547, 746 N.Y.S.2d 568 (Sup. Ct., NY Cty. 2002) In C.R.S., the court awarded temporary possession of the parties’ Labrador retriever to the wife, stating that the dog was an “interspousal gift” from the husband. However, the court made it clear that the dog was still considered property subject to equitable distribution, as a credit for the value of the Lab would go to the party who did not receive it.

Justice Cooper analyzed the First Department case of Raymond v. Lachmann (264 A.D.2d 340, 695 N.Y.S.2d 308 [1999]), involving in a dispute over an elderly cat named “Lovey:”

Raymond is significant for both what it does and does not do. The decision is a clear statement that the concept of a household pet like Lovey being mere property is outmoded. Consequently, it employs a new perspective for determining possession and ownership of a pet … This new view takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue. The factors touched upon in the decision include the concern for Lovey’s well-being … and the special relationship that existed between him and the person with whom he was living … In making its determination to keep Lovey in his present home, the First Department apparently concluded that the intangibles transcended the ordinary indicia of actual ownership or right to possession …”

Justice Cooper determined that the standard used in Raymond is “best for all concerned,” and held that the issue of Joey would be given a full hearing, with each side having “the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, living and being loved in the care of one spouse as opposed to the other.” He also held that, “The award of possession will be unqualified. … Whichever spouse is awarded Joey will have sole possession of him to the complete exclusion of the other.”

Travis should be read in the entirety, as it contains a detailed and nuanced analysis of pets in popular culture and the changing view of them under the law.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.



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