New York’s Pet Custody Bill: Hold Your Horses
In May 2021, both the New York State Assembly and Senate overwhelmingly passed a bill amending the Domestic Relations Law to address how household pets are treated in matrimonial actions. Specifically, the bill provides that a court “awarding possession of a companion animal . . . shall consider the best interest of such animal.” See S4248 (Feb. 3, 2021). The only remaining step for this provision to become law is Governor Andrew Cuomo signing the bill.
The pet custody bill seeks to achieve a laudable purpose: that household pets be granted more consideration by divorce courts compared to personal property. But the proposed “best interest of [the] animal” test is ill-conceived. For the reasons explained below, Governor Cuomo should veto the pet custody bill in its current form. In its place, the legislature should instead adopt a “best interest for all concerned” standard, which is already applied under existing precedent.
As an initial matter, enacting a statutory amendment concerning how courts treat domestic dispute over pets is long overdue. Historically, New York law has classified pets as “chattel,” and has treated them like any other personal property. Under traditional personal property principles, it is “the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative.” Travis v. Murray, 42 Misc. 3d 447, 453 (Sup. Ct., N.Y. Cty. 2013).
Certainly, treating pets as the legal equivalent to furniture or cars is antithetical to modern norms. “According to the American Veterinary Medical Association . . . , 36.5% of American households owned a dog and 30.4% owned a cat in 2012. As many of these households know, companion animals usually become members of the family. . . . For many families, pets are the equivalent of children . . . .” See S4248 (justification section).
In recognition of evolving societal values, New York divorce and family courts have already fashioned a common law standard when resolving pet custody disputes. For example, in Raymond v. Lachmann, 264 A.D.2d 340 (1st Dep’t 1999)—in a dispute resolving the ownership of a cat—the Appellate Division, First Department stated that it was “[c]ognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily.” In light of these considerations, the appellate court applied a “best interest for all concerned” standard—rather than strict property law principles.
Similarly, in Travis v. Murray, 42 Misc. 3d 447, 453 (Sup. Ct., N.Y. Cty. 2013), New York County Supreme Court Justice Matthew Cooper provided a comprehensive analysis applying the “best interest for all concerned” standard. Justice Cooper granted a one-day hearing during which each party could address, “why she will benefit from having [the pet] in her life” as well as why the pet “has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other.” Id. In making this determination, the Court would consider, among other things:
- “Who bore the major responsibility for meeting [the pet’s] needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together?
- Who spent more time with [the pet] on a regular basis?
- Why did [one party] leave [the pet] with [the other party] . . . ., at the time the couple separated?” Id.
Notably, the court in Raymond and Travis did not apply the “best interest of the pet” standard. In fact, courts have expressly rejected the “best interest of the pet” standard—as seen in the current pet custody bill—for multiple reasons.
First, “it is difficult if not impossible to truly determine what is in a pet’s best interests as there is no proven or practical means of gauging an animal’s happiness or ‘its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.’” Finn v. Anderson, 64 Misc. 3d 273, 275-77 (N.Y. City Ct. 2019) (quoting Travis, 42 Misc. 3d at 459). “The subjective factors that are ‘key to a best interests analysis in child custody—particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations—are, for the most part, unascertainable when the subject is an animal rather than a human.’” Id.
Second, the more rigorous “best interest of the pet” standard raises questions of judicial economy. As Justice Cooper explained in Travis, it is “highly questionable whether significant resources should be expended and substantial time spent on such endeavors . . . . [t]o allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children.” Travis, 42 Misc. 3d at 459. Court backlogs are a particularly acute problem following the COVID-19 pandemic and court shutdowns.
And even if the “best interest of the animal” is the right standard for pet custody disputes, the bill that the legislature passed does not uniformly apply this approach. Rather, the bill only amended the equitable distribution statute, which governs the division of marital property in the event of a divorce. Equitable distribution has no bearing on disputes among unmarried individuals. When a conflict over a pet arises between unmarried people, the remedy is an action for replevin—in which case the common law “best interest of all concerned” standard would apply. In short, the pet custody bill creates two standards: one for pets owned by married people (the best interest of the animal), and another for pets owned by unmarried people (the best interest of all concerned). This incongruous result is another reason to scrap the pet custody bill in its current form.
Instead, the legislature should draft and pass a bill applicable to all pet custody disputes (not just divorces), providing that courts use the “best interest of all concerned” test. This standard gives proper weight to the important role pets play in our families. At the same time, it permits the court to take into account the interests of other stakeholders, including the parties, children, extended family, and the pet’s care takers (i.e., dog walkers or pet sitters). This holistic approach vests the court with discretion to consider not only the welfare of the pet, but also the welfare of people who interact with the pet.
Regardless of the applicable standard, the Law Offices of Andrew T. Coyle is prepared to represent any party in a pet custody dispute. Andrew T. Coyle has experience litigating pet custody disputes in divorces, as well as defending Orders of Protection entered on behalf of a pet. For more information, contact us by email ([email protected]), or by phone (315-263-7102).