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Kramer vs. Kramer, Part 2 (the fight over the family pet)

In the movie Kramer vs. Kramer, Ted and Joanna Kramer call it quits after many years of marriage prompting a heated custody battle over Billy, the couple’s five year-old son. However, what if instead of being their son, Billy was, in fact, the Kramers’ pet dog or cat? How would the court have ruled in a dispute over custody of “Billy” the dog?

Although many parties obviously suffer in a divorce, it is only in recent times that courts have begun to look at the impact of the dissolution of a marriage, or long-term relationship on family pets and companion animals. As it turns out, the answer to how courts address disputes over pet custody is growing increasingly complicated, with great variation across jurisdictional lines. Furthermore, it comes as no surprise that state laws are failing to keep pace with the jurisprudence and ever-increasing frequency of animal custody disputes.

According to a survey by the American Academy of Matrimonial Lawyers, 27% of attorneys report an increase in pet custody cases over the last five years. Furthermore, about 10% of divorces that were uncontested and cordial, ended up getting “heated” over dogs and cats, with 88% of the fights over a dog, 5% over a cat and the remainder of the squabbles revolving around iguanas, pythons, African grey parrots and giant turtles.

Although it is never pleasant to contemplate the ramifications of the end of our most important relationships while times are good, knowing how the courts may rule in the jurisdiction where you reside may help you chart a course that will be beneficial to your interests in the unfortunate event of a pet custody dispute.

HOW WILL THE COURTS DETERMINE OWNERSHIP AND CUSTODY?

The growing trend in several courts throughout New York State is to treat family pets as more than “chattel” when analyzing disputes over custody and ownership. However, the Second Department is yet to adopt this approach and continues to treat pets and animals as mere “personal property”. See Feger v. Warwick Animal Shelter, 29 A.D.3d 515, 814 N.Y.S.2d 700 (2d Dept. 2006); Mullaly v. People, 86 N.Y. 365 (1881); and Rowan v. Sussdorff, 147 App.Div 673, 132 N.Y.S. 550 (2d Dept. 19911).

As such, in cases premised upon a cause of action for replevin (ie. custody) of a pet, the courts in the Second Department will continue to apply the standard of “superior possessory right in the chattel”. Pivar v. Graduate School of Figurative Art of the N.Y. Academy of Art, 290 A.D.2d 212, 735 N.Y.S.2d 522 (1st Dept. 2002). In other words, “it is the property rights of the litigants, rather than their respective abilities to care for the [pet] or their emotional ties to it, that are ultimately determinative.” Travis v. Murray, 42 Misc.3d 447, 977 N.Y.S.2d 621 (N.Y. Sup. Ct. 2013).

Under this approach to ruling on pet custody cases, the court will simply look at traditional rules of contract and property law to determine who has the strongest claim of ownership, and the pet is viewed in much the same light as if it were just a lamp, a dresser or some other inanimate object.

Diverging from the traditional approach followed by the Second Department, the First Department has adopted a different; perhaps more compassionate approach, to analyzing and ruling on pet custody cases. For instance, in Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 (1st Dept. 1999), the court acknowledged the “cherished status accorded to pets in our society” and adopted a “best for all concerned” approach to resolving ownership disputes involving pets.

Under this “modern” approach, the court will consider evidence on a wide variety of factors, such as, the age of the pet, its life expectancy, which party is best situated to provide the greatest love, care and attention to the pet, which party during the relationship spent the most time with the pet and/or provided for most of the pet’s material support, etc. The court may even consider who actually terminated the relationship, and whether a party chose to relocate or leave the family residence. See Mitchell v. Snider, 51 Misc.3d 1229(A)(N.Y. Civ. Ct. 2015)(Ruling that the plaintiff was not entitled to immediate possession “when it was primarily his choices which led to the defendant retaining sole possession of Django [the couple’s pet dog and subject of the dispute], and plaintiff’s decision to break up with the defendant and move out of their apartment).

Accordingly, even from the brief snapshot above, it is clear that the outcome of your pet custody dispute may vary greatly depending on the jurisdiction in which your case is brought. Thus, having even a general understanding of the type of evidence the court will consider in determining the issue of pet custody can help you plan your case should your relationship come to an untimely or unexpected end.

CONCLUSION

It goes without saying that when couples split, custody is one of the most difficult issues that must be addressed and resolved. Traditionally, courts have only been involved with custody matters involving children. However, now considerations over custody are also being made with ever more frequency for dogs, cats and and other animals who have become an undeniable part of the family.

It has been noted that disputes over pets are becoming more frequent possibly due to couples choosing to get pets instead of having children. Therefore, the pets become like children – and just like anything else sacred, people will fight for them.

If you ever find yourself in a fight for custody of your pet, do not hesitate to contact an attorney with experience in this highly specialized and evolving field. Having the assistance of an attorney who understands the laws, which will be dispositive of the issue of ownership and custody can be the deciding factor in the outcome of your case.

ABOUT THE AUTHOR

Craig H. Handler, Esq. is an experienced litigator focusing his practice primarily on complex commercial, construction, real estate and insurance litigation. When Mr. Handler is not busy working, he enjoys spending time with his wife, daughter, pet dog and three cats.