In young couples and/or childless couples, custody of pets has been a sore subject that has come up in my practice. Pets are interesting because they are not children, but they are not exactly purely personal property either.
Custody over a mini dachshund named Joey was at issue in the interesting case of Travis v. Murray, 42 Misc.3d 447 (Sup. Ct., N.Y. County, 2013). The Plaintiff purchased Joey from a pet store in 2011, while the couple was living together (but not yet married at that time). The couple married in 2012 and in 2013, while the Plaintiff was away on business, the Defendant took the dog and moved out. She told the Plaintiff that she lost Joey, but later admitted that she took Joey and relocated to her mother’s in Maine. The Plaintiff filed for divorce one month later and requested the return of Joey and sole custody of him.
The Plaintiff’s claim for custody is that she purchased Joey with her own money and was the primary caretaker of Joey. The Defendant claimed that Joey was a gift to her from the Plaintiff, that she was the best caretaker for Joey, and that Joey should live with her at her mother’s in Maine.
Unfortunately, the law in New York is not so evolved regarding pets and treats them more as personal property or chattel. However, there is a slow shift towards treating pets differently from other personal property or chattel. For example, in a non-matrimonial case, Corso v. Crawford Dog and Cat Hospital, Inc., 97 Misc.2d 530 (Civ. Ct., Queens 1979), a New York court stated that “a pet is ‘somewhere in between a person and a personal piece of property.’” Travis v. Murray, at 625 (citing Corso). In an Appellate Division First Department case, it was recognized that what was best for all parties involved and ultimately the cat’s well-being trumped property ownership rights. Raymond v. Lachmann, 264 A.D.2d 340 (1st Dept. 1999).
The Court in Travis v. Murray struggles with what to do with Joey, and looks to how other states have dealt with doggie custody. Although New York courts recognize that pets have a higher status than mere personal property, a pet is still not entitled to the same standard as a child in awarding custody. So what does that court do? The Court determines that there should be a hearing to determine what is “best for all concerned” (See, Raymond). This will not be nearly as involved as a child custody dispute with experts testifying, the child’s wishes being considered, etc., but will give the parties a chance to explain how Joey would be better off with each of them. However, the unfortunate reality is that whoever ends up with custody has sole custody and there will be no visitation or joint custody. To determine a visitation or joint custody schedule would simply take up too much of the Court’s time.
It will be interesting to see how New York courts evolve in the way they settled pet custody disputes in a divorce. Rincker Law, PLLC is available to help with animal law disputes between couples. Cari Rincker is also a trained mediator to help facilitate a conversation between couples who are at an impasse with a pet custody issue.
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."