By: Richard Geller
If you're a pet owner like me, the attachment you feel to your pet is immeasurable. Our dog has been with us for less than a year, but I can't imagine what it would be like without her. This country's love for cats and dogs seems to only be increasing. The Humane Society of the United States estimates that there are "nearly 179 million cats and dogs living in U.S. homes." Although that figure does not represent the number of married couples that jointly own a pet, the figure representing that pool is also growing substantially (so much so, that the pope is getting concerned).
Unfortunately, the increase in pet ownership in a married home is joined by a proportionately increasing issue: custody of the pet in the event of a divorce or separation. Although a study by the American Veterinary Medical Association states that in 2011, 6 out of every 10 pet owners "considered their pets to be family members," the law in New York has always regarded household pets as property; albeit a "special category of property" (see respectively, Fowler v. Ticonderoga, 131 A.D.2d 919 (1987); and Hennet v. Allan, 43 Misc 3d 542 (2014)).
Currently, the only law in New York taking a divergent stance on the matter is the Family Court Act §842, which allows pets to be included as protected family members in orders of protection. Otherwise, disputes between parties regarding the ownership, custody, or possession of a companion pet have been left to the utilization of replevin - the same recourse used for any other piece of property or chattel.
Although the New York Legislature has yet to change their position on the matter, there's recently been a bit of a jurisprudential shift. Late last year, in the case of Travis v Murray, Judge Cooper of the Supreme Court of New York County presided over the divorce of a New York lesbian couple disputing over the custody of their 2 1/2 year old miniature dachshund, Joey. In a surprise decision, Judge Cooper ordered a full one-day hearing to determine "who gets Joey." Though the Judge set the application of a sympathetic "best for all concerned" standard to be used in the Court's final determination, he stated that the decision would mean that "whichever spouse is awarded Joey will have sole possession of him to the complete exclusion of the other." Subsequently, Judge Cooper acknowledged that the end result (i.e., preclusion of visitation or joint custody) would be a harsh one for the losing party. He subsequently justified his decision by reasoning that:
[...] our judicial system cannot extend to dog owners the same time and resources that parents are entitled to in child custody proceedings. The extension of an award of possession of a dog to include visitation or joint custody - components of child custody designed to keep both parents firmly involved in the child's life - would only serve as an invitation for endless post-divorce litigation, keeping the parties needlessly tied to one another and to the court."
In the end, though Judge Cooper asserts that the law should humanize the view on pet custody, he doesn't believe it can be stretched so far as likening it to the standards and formulas set forth for child custody.
Accordingly, given the Court's stern "winner takes all" stance, it is in the best interest of every pet-owning couple, married or almost-married - to set up a safety net protecting their interests should the relationship take an unexpected turn for the worst. The best way to do so is with the drafting of a prenuptial or postnuptial agreement.
A prenuptial or postnuptial agreement is an agreement made between a couple that outlines the order of things should they separate or divorce. Some of those terms include the allocation of property and assets, determination of spousal support, etc. Provided that the Court will ultimately seek to award only one party with sole custody of the dog, there has been a trend in drafting what some are calling "pre-pups" - provisions set within prenups or postnups that outline the couples custody and visitation rights regarding their pet companions.
Though it has yet to be determined whether the Court would enforce such a provision (provided that the couple does not amicably concede with the set terms of this agreement), it is ultimately a safer option to have one, rather than presenting the court with a pair of empty hands. If for nothing else, the effort of trying to maintain custody of your dog in an agreement may help substantiate one of the factors put forth by Judge Cooper in his analysis: a showing of why the dog would have a "better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other."