How Can I Get Custody Of My Pet In A New York Divorce?
Answer
Pets are a fundamental part of our families, and to many of us, are just as important as children. Luckily, the courts in New York recognize that pets are much more than personal property.
In New York, the way that courts resolve pet disputes in divorce is through a "best interest of all" analysis. Similar to a custody analysis, the court weighs several factors in its best interest analysis without any one factor controlling the outcome. But, unlike custody of children where the courts can only consider the child's best interest, for pet custody, courts weigh the interests of all involved in the animal's life. The multifactor analysis considers your pet's best interest, your best interests, your former spouse or partner's best interest, and the best interests of any children involved.
How Does New York Handle Pet Custody?
You may have heard that courts consider pets as "property" and can only compensate for the monetary value of the pet. That approach is largely antiquated and has been rejected by modern courts as failing to take into account the emotional value of the pet and how so many involved are deeply affected by which spouse or partner gets to keep the pet.
As the owner of two Italian Greyhounds, Gia and Jax, I understand how special the relationship we have with our pets can be, and I am thrilled the law has evolved to respect this relationship. I, like you, would fight tooth and nail for my dogs and would want to position myself in the most advantageous way possible to ensure my dogs continue to live with me for the remainder of their lives.
In 2013, the court released an important decision on pet custody in the case of Travis v. Murray. The court in Travis v. Murray found that while pets were not the same as children, they were inherently more valuable than property. Thus, the new rule was established that pet custody must be analyzed in the best interest of all involved. Divorcing or separating pet parents may each present the court with their arguments for why it is best for all that the pet be given to them based on a number of factors. Then, the judge will make a decision that will grant one spouse full custody of the pet.
What Are The Main Factors That Can Impact Pet Custody?
There are a number of factors that can change how a judge will consider awarding pet custody in a New York divorce. These factors generally can fall into a few main categories that would apply in most cases, such as:
- Who initially found the pet when you got it?
- Who paid for the pet?
- Whose name is on the pet’s ownership paperwork?
- Who takes the pet to the vet and pays for the vet bills?
- Who takes care of the pet’s daily needs, like food and exercise?
- What are the parents' work schedules and availability to care for the pet?
- Who did training with the pet?
- Who does the pet gravitate toward?
- Does the pet sleep with one spouse, or with a child?
- Is the pet a service animal for one of the pet parents?
These are only a few of the questions a court would consider in determining pet custody. One major factor that can impact a judge’s decision is if you have children. When parents get divorced, the court will often try to keep the family dog or cat with the children due to the emotional bond that they share. Some families with children opt to settle pet custody by allowing the pet to travel between households to always keep the family pet with the children. Those parents tend to share expenses for the pet's care and upkeep.
However, this outcome is unlikely to be achieved through the court. Instead, the judge will likely favor keeping the pet with the parent who has primary custody of the children after the divorce. Once the judge has made their decision based on all of the factors in the case, the prevailing party will be awarded sole custody of the pet. The court will also not award a visitation schedule for the parent who is not awarded custody of the pet.
Shared Custody Is Only Possible In An Out-Of-Court Settlement
For many people, the prospect of having a judge decide full custody of their pet is daunting because, inherently, there is always the risk that the court could get it wrong, and you could lose your pet. If this is a significant concern for you, I strongly urge you to consider an out-of-court settlement agreement to devise a "parenting" schedule for the dog and to delineate financial responsibility.
While a judge will not award shared custody over a pet, pet parents are free to create their own shared custody agreement through a negotiated divorce or separation agreements. This gives you the ultimate flexibility to determine a plan that works best for you and your former spouse or partner, such as ensuring that your pet stays with your children, or that the shared schedule fits within your unique schedule and circumstances.
Conclusion
Pets are precious, and as a dog mom myself, I am particularly passionate about helping devoted pet parents make sure their pets stay with them following a divorce or separation. While I handle many divorces and separations, the pet custody cases I have tend to hit differently; our time with our loved one is so limited, and they don't have the ability to understand what is happening. Therefore, it is truly incumbent upon us to do all we can to protect them and make sure they have the best life possible for all the time they have left in this world.
The process through court may involve motion practice and/or a very short trial, or if settling, negotiated agreements that afford both parents time with their fur child. Make sure you compile records such as old emails, receipts, vet records and town licenses. If pet custody is an issue of importance to you, make sure you have an attorney experienced in pet custody to help guide you through the process and toward an advantageous position.
The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.
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