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Child CustodyPet Custody in New York: Who Gets the Dog in a Divorce?

December 12, 2013

25493-lulu-thumb-400x711-25492Every dog has its day- a day of trial in a New York divorce court to determine which “parent” will obtain custody.

Increasingly, custody of cats and dogs are issues in family law cases. While our pets are beloved family members, New York courts, up to now, have been reluctant to consider them anything other than personal property. Courts have traditionally dealt post-divorce custody of pets the same way they addressed distributing other personal property like a car or a piece of furniture.

Things may now change. One Manhattan matrimonial judge recently recognized that pets have a unique and cherished place in the family; they are not chattel or personal property and to treat them as such would be inappropriate.

On the other hand, dogs, cats and other pets are not children. An already overly burdened divorce courts cannot devote the time, expense and resources to conduct proceedings that mirror the complexity of a child custody case.

Striking a balance between the two extremes, the court ruled that a divorcing pet owners would be entitled to a one-day winner-take-all trial to determine custody of a family dog. The court would apply a standard of what is in the best interest of all concerned. Each party would have the opportunity to prove not only why she will benefit from having Joey, the dog, in her life but why the dog has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other.

25494-lucy-thumb-200x355-25491In order the make their case the parties need to address:

  • Who bore the major responsibility for meeting Joey’s needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together?
  • Who spent more time with Joey on a regular basis?
  • Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated?
  • And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter, in New York?

The outcome of this dog custody trial will be winner-take-all; one owner wil have the dog to the exclusion of the other. The court will not order visitation. The Court opined that to order allow for visitation would result in endless post-divorce litigation. The court, by making this pronouncement, was, in a Solomon-like manner, urging the parties to settle- as the loser of the trial would have no right to see the dog ever again.

Parties are always free to make whatever arrangements they could agree on. I have had divorcing couples agree to split custody as if the dogs were children.

I am sure that non-pet owners will not understand what all this fuss is about. But as the Court aptly pointed out,

25496-mo-thumb-200x355-25495Matrimonial judges spend countless hours on other disputes that do not rise to a level of importance anywhere near that of children. If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet

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