Matrimonial Matters: Pet custody now in NY law

The award of companion animals in a divorce has been an issue for several years. In 2015, the New York Senate and General Assembly passed a law addressing this subject, but the measure did not get to the governor’s desk prior to the end of that legislative session. However, in 2021, the measure did make it to the governor and it was signed into law, becoming effective as of Oct. 25, 2021. The provision was added as a new paragraph 15 of the factors to be considered by the court in determining equitable distribution under Domestic Relations Law §236B 5:

(15) In awarding the possession of a companion animal, the court shall consider the best interest of such animal. “Companion animal,” as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the Agriculture and Markets law;

Agriculture and Markets law §350 defines this as:

“Companion animal” or “pet” means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. “Pet” or “companion animal” shall not include a “farm animal” as defined in this section.

Note the definition of “farm animal” under Agricultural and Markets law:

“Farm animal”, as used in this article, means any ungulate, poultry, species of cattle, sheep, swine, goats, llamas, horses or fur-bearing animals, as defined in section 11-1907 of the environmental conservation law, which are raised for commercial or subsistence purposes. Fur-bearing animal shall not include dogs or cats.

In reading these statutory definitions, it is not really clear whether a horse, pig, or chicken, for example, could be considered a “companion animal” for custody purposes (although in general use, all these animals can be considered pets). Although it would seem that if a horse, pig, or chicken which is “normally maintained in or near the household of the owner or person who cares for such other domesticated animal” implies that it would.

An early New York case involving pet custody in a divorce — and one referenced extensively in later cases — is Travis v. Murray (42 Misc. 3d 477, 977 N.Y.S.2d 621 (NY Cty. 2013). In it Judge Matthew Cooper handed down an extremely well-researched, and eloquent, decision regarding custody of a dog, writing: “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.” The sole issue in the case was which party would get Joey, 2 ½ year old miniature dachshund. Judge Cooper held, “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.” In a footnote, Judge Cooper noted, “Full disclosure: I own a dog, a rescued pit bull mix named Peaches. She is loving, loyal and kind, and at age 12 is still able to leap tall buildings in a single bound in order to catch a frisbee.”

Now that the Domestic Relations Law specifically provides the rules, domestic relations courts must consider the award of a pet to a party is to be based on the best interest of the animal. At least we will not have to deal with strident claims of ownership by a party that they “paid for” the pet or that the pet is registered in that party’s name alone.

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