Tuesday, April 20, 2010


Pet Seminary: The Rise in Animal Custody Claims

For legal time immemorial, animals have been considered “chattel”– items of property and nothing more. This, notwithstanding the vaunted role some animals have had throughout history. Cats in ancient Egypt, the significance of elephants in fertility and luck in certain cultures, dogs in royal European portraits, noble Arabian steeds in the middle east, and of course the GEICO gecko. But under our laws, they are property. If you are a pet lover who considers Fido to be family, this all seems barbaric. Having a very handsome Pomeranian named Giorgio in my home, my wife and I count ourselves among those who consider him as family and nothing less– even when he leaves me a present that is neither wanted nor returnable. I guess it is the thought that counts. Given that more and more people feel this way about their dogs, and even cats (sorry for the shameless dig, cat people), the laws and court cases are starting to shift a little on this “chattel” thing.

Many years ago I was yelled at by a trial judge for bringing in an application for the court to decide temporary custody of a dog. He was incensed and said something about taking an automatic weapon up to the roof of the courthouse and unloading his frustration to the sky at having to have to read such an affront to his senses. While still technically property, some court have recognized that they are more and it is not unusual for divorcing couples to provide for “custody” rights upon separation. A recent New Jersey case saw a trial court reversed for referencing the family pet at issue as being akin to “furniture”. (See “Ex Couple’s Fight For Pug May Change Laws”, Today at msnbc.com, August 2, 2009, http://today.msnbc.msn.com/id/32240294/ns/today-today_pets/) In CRS v TKS, 192 Misc 2d 547 (Sup Court NY County 2002), the court addresses the husband’s attempt to stop the transfer of the parties’ Chocolate Lab as an improper advance distribution of property “no different than a sofa, home or bank account”. While acknowledging it as “chattel” and not addressing the more personal aspects of the Lab, the court noted that a financial value could be set at trial with a credit to the husband and awarded temporary “possession” to the wife. The Family Court Act at section 842 (i) has also been amended to permit orders of protection to be issued in favor of “companion animals”, so as to prevent a party from “intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased kept or held by the petitioner or a minor child residing in the household.”

Several other articles have also appeared nationwide on the issue of “pet custody”. (“Who Gets Custody of the Dog?” USA Today, May 28, 2008, http://www.usatoday.com/life/lifestyle/2008-05-27-dogs-divorce_N.htm; “Custody Battles Over Pets Look Like a Dogfight” by Jane Porter, The Hartford Courant, October 1, 2006; “Bones Of Contention: Custody of Family Pets” by Prof. Ann Hartwell Britton, Journal of the American Academy of Matrimonial Lawyers, August 8, 2006, http://www.aaml.org/tasks/sites/default/assets/File/docs/journal/Journal_vol_20-1-1_-_Custody_of_Family_Pets.pdf)

Given the law’s exiting structure (which must continue to define pets as property by clear legal precedent despite the public’s contrary view), what is one to do? As with most other issues, the answer is, come to an agreement. A written agreement which comports with the requirements of our Domestic Relations Law (or otherwise as a contract in a non-family law situation) will be binding- just as Wills which leave all or part of a deceased estate for the benefit on a pet, may properly stand up in court. The agreement should specify the pet(s) involved, the name, the breed, the license number if applicable and where the pet(s) will go. If more than one, are they being split between the parties? If there are children, will the pet(s) go back and forth with the children even if ownership s vested in one party? Will there be “joint custody”? Will one party have “visitation rights? How will the pet insurance and vet bills be paid if the parties are sharing rights?

These issues are being raised more and more frequently in our divorce courts even though the judges do not like dealing with them. As divorcing parties become more and more litigious (and they are) and our pets become viewed more and more as close and important family members (and they are), the level of emotional turmoil as well as tactical positioning is being ratcheted up. The court will hear arguments, but will curse each and every moment which is being spent litigating and not resolving these claims. Our courts will, however, have to recognize that pet custody can be to some as personal and volatile as a child custody case.

This may all still sound silly to some, especially the “old schoolers” who grew up leaving the dog tied up outside all day in good and bad weather (you know who you are). To them I have two scary words, “Cesar Milan”. For me, as I finish this blog and am packing up for the evening, all while anticipating the two trials I have next week, I say, “Giorgio, daddy’s coming home!” Did I mention how handsome he is...

Author's Note: Thanks to my law clerk, Michelle Spencer, for her research assistance on this post.