Pet “Custody” in Divorce
Action: The Evolution of the “Best
for All Concerned” Standard

by Clifford J. Petroske, Esq. January 6, 2014
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Clifford Petroske, esq. divorce lawyer Long Island

It should not surprise anyone that parties to a divorce action are often unable to agree on who should keep the prized family pet.  As with any other issue, when they are unable to agree, the parties must look to the court for a determination.  Until recently, the results were often disappointing because the courts were constrained to consider domestic animals only as property.  Thankfully, the law in New York is now evolving to consider the place the pet has occupied in the family, and not just which party has the superior property claim to the animal.

Traditionally, in a divorce action a pet has been viewed as property, not different than a chair or a set of dishes.  First, the court considers first whether the animal is separate or marital property.  If received as a gift from a third party, or owned by one of the parties from before the marriage, the animal is kept by that party as his/her separate property.  If the pet does not fit into a separate property category, the courts may distribute the animal to one or the other party somewhat arbitrarily, sometimes granting the losing party a monetary credit equal to the fair market value of the animal (see, CRS v. TKS 192 Misc 2d 547 [Sup Ct NY Cty 2002]).

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The law has been slow to evolve and this traditional view is still the law in much of the state.  Indeed, it was not until 1979, in Corso v. Crawford Dog and Cat Hospital, Inc. (97 Misc 2d 530) that a New York court recognized that “a pet is not just a thing” and is something “in between a person and a piece of property.”  In that case, the Queens Civil Court awarded a bereaved pet owner damages for emotional distress caused by a veterinarian who wrongfully disposed of the remains of a poodle, and tried to cover it up by putting a dead cat in the pet’s casket.

Unfortunately, the Corso case is a lower level non-matrimonial case, and bears little weight in a divorce.  In the New York metropolitan area, cases decided by the First and Second Departments of the Appellate Division of the Supreme Court determine the rules to be followed by the local divorce courts.  For this reason, it was encouraging that in 2008, in a case called Feger v. Warwick Animal Shelter 59 AD3d 68), the Second Department recognized that “companion animals” are a “special category of property” to be “treated differently than other forms of property.”  Although this appellate level authority gave credence to the idea that pets are more than mere property, it was not a matrimonial case, and so it provides no guidance for how divorcing parties can expect a court to rule on who gets possession of a pet.

The Appellate Division, First Department, which covers cases from Manhattan (New York County), was the first to weigh in on the question of pet possession.  Although not a divorce case, Raymond v. Lachmann, 264 AD2d 340 (1st Dept 1999) dealt with the right to possession of ten year old cat named Lovey.  Instead of treating her as mere property, the court awarded possession of Lovey to her most recent owner of the past four years, reasoning this outcome was the “best for all concerned” because Lovey had “lived, prospered, loved and been loved” there.   Remarkably, the Raymond court appeared to abandon property law principals in reaching its decision.  The Raymond case is significant because it is not an injury case, and instead deals with the possession of a companion animal in much the same way that a divorce case would.

The law moves slowly, however, and without a precedent from an actual matrimonial case to guide the courts, the Raymond case remains an outlier.   Yet a recent matrimonial case decision that relied upon Raymond is a valuable illustration of how the reasoning employed in that case may take hold in matrimonial litigation.

The case is Travis v. Murray (308310/13 NYLJ 1202631512607 (Sup Ct NY County, 11/29/13)(Cooper, J.).  If it were not for Joey, the 2½ year old miniature dachshund at the center of the case, the parties, a couple married in October, 2012, and separated eight months later in June, 2013, would not have had much, if anything, to fight about.  But Joey was the center of their world.  He was purchased by the plaintiff Shannon Travis before the parties were married so she claimed that Joey was her separate property.  However, the defendant Trisha Murray, claimed that Joey had been given to her as a gift to compensate for losing her cat.  With this gift having been made before marriage, she too had a claim that Joey was separate property.

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But Judge Cooper gave no weight to the parties conflicting separate property claims and chose instead to utilize the standard adopted by the Raymond case.  Calling it the “best for all concerned” standard, the Travis court went to some length to distinguish a pet distribution case from a child custody case, concluding that the “best for all concerned” standard should not be confused with the “best interests of the child” standard used to determine child custody.  The determination of a child’s best interests is a lengthy, difficult and expensive proceeding in which the court needs a tremendous amount of information relative to the needs and aptitudes of a child.  Not only is this expense and trouble “unworkable and unwarranted” for pets, but it is difficult if not impossible to truly know a pet’s best interests.  As Judge Cooper put it, “there is no proven or practical means of gauging a dog’s happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.”

Leaving no doubt that Joey’s fate warranted serious attention, but not so serious that it would require more than a day of trial, the Court set the matter down for a one day hearing where each side would have the opportunity to prove not only why she would benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties were asked to address questions like: 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? And who spent more time with Joey on a regular basis? By spelling out the proof it considered relevant at the trial, the Travis court defined the parameters of a “best for all concerned” pet custody standard.

Clearly, the law on pet custody is changing in an effort to keep up with society where many people view their pets as a part of the family.  However, it remains to be seen whether other Courts will follow the Raymond and Travis cases and institute a new policy for the determination of pet custody in divorce.  In the meantime, it remains difficult to forecast how a court will deal with a pet custody issue.  Given the tremendous caseloads that many courts carry, judges may be reluctant to treat animals as something “between a person and a piece of property,” and instead keep their calendars moving by threatening to treat the animal as property at trial — leaving it to the parties to figure out how to divide a pet’s possession if they are able to settle.

As for the parties in the Travis case, after Judge Cooper decision came out, they quickly settled.  They had been given directions on what the Court thought was important and, in their case, they both agreed that the defendant should keep Joey.  After all, Joey slept closer to her side of the bed.

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