Who Gets the Dog? Determining Pet Custody in a New York Divorce

For many people, pets are like family members. For New Yorkers who are separating from a partner or are getting divorced, pets can create a lot of complications. Traditionally, New York courts treated pets like regular property, or chattel. In other words, no consideration was given beyond who bought the pet or who had received the pet as a gift. However, over the past couple of years, there has been a significant shift in New York courts over how pets are handled during a divorce.

Although many New Yorkers do view their pets in the same way the one views children, courts have refused to use the same “best interest of the child” standard in determining who gets the beloved pet when a couple is no longer together. Rather, courts have been using the standard of “best for all concerned” standard, because it would be extremely difficult to utilize all the qualities and aspects of a child custody and visitation determination with respect to animals. In making a decision based on what is “best for all concerned” the court now looks at several factors. These include:

  1. Who was the person primarily responsible for the pet’s needs?

The court will look at which party has been providing the pet with respect to items such as food, grooming, veterinary appointments, and exercise such as walking the pet if applicable. Therefore, if you are seeking custody of your pet, it is extremely important you make your lawyer or attorney aware of all the ways in which you have cared for your pet. This is not unlike the kind of evidence considered in child custody matters. Courts will typically have a preference towards the primary caretaker.

  1. Who was the person spending the most time with the pet on a regular basis?

Even if one person is the party who purchased the pet or is responsible for feeding them, who is with the pet more often? Courts will consider who plays with the pet, who is home with them more often, who spends more time making sure that the pet is comfortable and happy. A party who comes home from work and plays and cuddles with the family dog when the other party is always out or at work is often going to be looked at more favorably. If you are the party who is home less often, it is important to express to your lawyer or attorney how you spend more time with the pet when you are home, or how you are the primary caretaker in other ways. On another level, the court is going to look at which party, in addition to the pet, would be most harmed or most benefit from having the pet in their custody and care.

  1. Looking at the best interests of the pet, what living situation would be preferable?

Once again, a home where there are people around more often to care for the pet is frequently considered to be in their better interests. Additionally, Courts will often prefer to keep the pet in the environment they are already used to if possible, especially if it is an older animal and/or one that is not in the best of health. Another factor that may come into play is space. If there is a choice between a cramped environment and one that has lots of space for the pet to enjoy (if applicable) that will be a point in the larger space-holding litigant’s favor.

  1. Would a shared custody arrangement be feasible?

Sometimes, the parties can share custody of a pet. Courts do not frequently order this, but it will sometimes happen where children are involved (namely, the pet will travel with the children). The parties can reach this agreement privately as well, but there isn’t much in the way of law regarding the enforcement of such agreements in New York courts. However, in determining if shared custody of a pet is feasible, the court will often look at where the parties live in relation to each other, as a lot of back and forth between different places could be harmful to the animal.

  1. Do the parties have children involved in the case?

As stated before, sometimes pets travel with children in a divorce situation. When the parties divorcing have children who live at home, New York courts will look closely at the impact removing the pet from the children will have on them. Pets are known to have therapeutic influences, and no longer living with a beloved furry friend can be devastating on children who already are going through a difficult time.

Overall, since New York has moved towards giving pets the greater status that they deserve in divorce litigation, it is important that a litigant seeking custody of the family pet provide as much possible information to their lawyer or attorney showing the significance and level of their relationship with the pet, especially with respect to how they and the pet would be impacted by any other outcome than the one being sought.

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