Pet Custody: Who gets Fido?
Pet Custody: Who gets Fido?
By: Elizabeth A. Sopinski
A pet is one of the most cherished gifts of life. After a long day at work, your dog greets you with lots of love and a wagging tail when you get home. A pet provides companionship and unconditional love. Perhaps when you are going through a separation or divorce, your pet provides you with the comfort of which you are so much in need. But what happens when your ex-spouse loves Fido as much as you do? What role does the Court play in the tug-of-war of your cherished pet?
Most courts have applied a strict property analysis to determine pet custody. For example, if a pet was purchased prior to marriage by one spouse, courts have held it was that spouse’s property. But many of us know a pet is much more than a piece of personal property such as a couch or the outside shed. A dog or a cat is a woman or man’s best friend. A gallup poll once showed that most pet owners would not, in exchange for $1 million dollars cash, give up their pet.
However, one New York court in New York County moved away from the strict property view, finding that household pets have a special status beyond just a piece of property. In Travis v Murray, 42 Misc 3d 447 [NY Cnty 2013], the parties were disputing over custody of their beloved two-and-a-half- year-old dachshund named Joey. The plaintiff purchased the dog prior to marriage but while the parties were living together, and thus argued the dog was her separate property. The Court disagreed finding that “in a case such as this, where two spouses are battling over a dog they once possessed and raised together, a strict property analysis is neither desirable nor appropriate.” The Court determined that Joey was more than a piece of property, whether marital or not. While the Court did not adopt, in full, “the best interest of the child” standard used in child custody cases, the Court found it appropriate to assess some of the factors traditionally employed when assessing child custody. The Court applied a “best for all concerned” standard, in which each party would be permitted to submit proof concerning not only why he or she would benefit from having custody of the pet but why the pet would also be better off. The Court stated it would be assessing factors such as who bore the major responsibility for meeting Joey’s needs and who spent more time with Joey. Whichever party established that his or her ownership of the dog would be the “best for all concerned,” would have exclusive custody of the dog to the exclusion of the other.
Although this issue has not been addressed by a local judge or binding appellate court, it is possible that the “best for all concerned” standard could be applied by a local court, although it does not necessarily have to do so. However, although the Travis Court aptly determined that a pet is more than a piece of property, it foreclosed the idea of joint custody of a pet, finding that adopting that aspect from child custody principles would lead to endless litigation that was well beyond the Court’s time and resources. As such, it may be in the interest of divorced or separated parties to come to an agreement concerning each spouse’s time with a pet so as not to risk never seeing your beloved Fido again. Consult with the lawyers at Levene Gouldin & Thompson concerning any and all matrimonial and custody issues, including those concerning your beloved pet. We are pet lovers, too!