Canine Custody- Who Will Get the Dog?
By: Brooke Ezell, Esq.
Going through a divorce comes with a multitude of challenges muddled with constant give and take. Questions like, “Who is getting the house?”, “Who is going to pay that credit card?”, “Where are the children going to live?” are unavoidable. For some families, which party will be receiving the family pet is just as important, and surprisingly, is becoming one of the more contested issues in divorce cases. There is a multitude of literature about how child custody is resolved—but what about the family pet? You might be surprised to learn that pets fall into a gray area in family law, and if your pet is important to you, you may want to keep reading.
“Custody” of animals has historically been determined based on traditional property standards. In civil litigation cases involving the loss of a pet, the value of a family pet was limited to the replacement value, i.e. the purchase price of the pet without consideration for any sentimental value. In divorce cases, the pet would be treated like a piece of furniture. Unless the pet was brought into the marriage by one party or gifted to a party, the pet would be lumped in with other marital assets for equitable distribution. The pet could be seen as an expense, rather than an asset. It also might be common to simply award the pet to the parent who has primary custody of the children or the house without any emotional consideration.
Changes in recent law have begun to recognize the inherent value of pets. The New York Legislature recently passed a bill that allows its courts to determine the custody of pets based on many of the same factors that courts review when determining custody of children. The “best interests” for the child standard requires that courts evaluate and balance all elements that will affect a child’s life and make custody determinations based on the child’s best interest.
If courts continue to take this approach when determining pet custody, you will likely see considerations such as (1) the quality of the home environment, (2) the suitability of each party to provide for the pet on a daily basis, (3) who has historically been responsible for providing veterinary care, plus a multitude of other factors. Under this standard, questions like, “Who feeds the dog?”, “Who walks the dog?”, or “Who makes the vet appointments?” are commonplace in the presentation of evidence. Believe it or not, we are actually seeing these issues be litigated in court. In our experience, while custody of pets may seem silly in the grand scheme of a divorce, we have seen judges patiently listen to evidence concerning pets and make carefully-considered decisions awarding custody of pets.
Like children, parties can agree to share “custody” of pets. You are not limited to the option of only one party retaining ownership of the pet. You could agree, or the court could order, the pet will be shared in some way (such as trading weeks or weekends with the pet). You can also agree to share expenses associated with the pet in a way that is equitable.
How can you best protect your rights to your pet? Legal title will continue to be important. If you have adoption papers, a “chip,” or other evidence demonstrating your ownership of the pet, that evidence will be important. If you do not have legal title to a pet and you wish to keep your pet in the divorce, think of other evidence that might be important to a court. Be prepared to show how you are able to care for the pet and how you are emotionally bonded to the pet. Similarly, be prepared to show concerns you have about the other party’s ability to care for the pet, such as work-related travel or lack of familiarity with the pet’s needs.
We know that many pet owners, especially those without children, consider their animals as “their children” and losing them in a divorce could be devasting. At The Leonard Firm, we value animals and have many clients who have fought for custody of their pets. If you are contemplating divorce and are concerned about your pet, please don’t hesitate to give us a call. We are more than happy to discuss your options and create a strategy to keep your four-legged friend in your care.