Determining “Custody” of Beloved Companion Pets in Matrimonial Actions
By Sherri Donovan
Trisha Murray and Shannon Travis had a short marriage—marrying in 2012, filing for divorce in 2013. They had no children, few assets and their sole dispute was over who would keep Joey, their miniature dachshund. In Travis v. Murray, (1) Justice Matthew Cooper issued a 19-page decision, which ordered the parties to appear for a one-day hearing to determine which party would win possession of the dog. The judge would apply a “best for all concerned” standard following the hearing, thus departing from strict property analysis traditionally used for possessory disputes over animals, yet falling short of engaging in a full-fledged child custody analysis.
In 2011, a year before their marriage, Ms. Travis purchased Joey at a pet store and brought him home to the couple’s shared apartment. When Ms. Murray moved out in 2013 while Ms. Travis was away on a business trip, she took with her a few pieces of furniture, some personal possessions and Joey. When Ms. Travis asked for Joey’s return, Ms. Murray claimed she had lost him in Central Park.
One month later, Ms. Travis proceeded to file for divorce. Two months later, she brought a motion seeking an account of Joey’s whereabouts and an order directing that he be returned to her “care and custody” and that she be granted “sole residential custody of her dog.” Ms. Murray revealed that Joey was not in fact lost, but rather living with her mother in Maine.
In her papers, Ms. Travis argued that Joey was her property because she had purchased him with her own funds prior to the marriage. Further, she stated that she was the party who had provided primary financial support for Joey. Ms. Murray replied that Joey was her property, as Ms. Travis had purchased him as a gift for her as consolation after she had given away her cat at Ms. Travis’s insistence. Ms. Murray also stated that she, too, had contributed financially to Joey’s care.
While Ms. Travis asserted that she was the party who had cared for Joey on a primary basis, Ms. Murray countered that Joey slept on her side of the bed and that she was the one who “attended to all of Joey’s emotional, practical and logistical needs.” Ms. Murray concluded that it was in Joey’s “best interests” to be with her mother in Maine, where she could visit him regularly and where he is “healthy, safe and happy,” adding that Ms. Travis traveled often for work.
In his November 29, 2013 decision, Justice Cooper noted that both parties invoked two distinct approaches in determining which one should be awarded Joey: tradi- tional property analysis, i.e., ownership stemming from purchase or gift, and child custody analysis, whereby core custody concepts such as primary caretaking and best interests were called into play.
The judge engaged in a thorough analysis, referencing cultural articles in New York magazine and the New York Times that discuss the “humanification” of our pets and the important role that dogs play in our emotional lives (2) and citing research detailing the ever increasing amount of time, money and attention that household pets receive in the United States. (3)
Following a review of New York case law, Judge Cooper noted that while the New York magazine and New York Times articles prove that New Yorkers consider their pets as far more than mere property, prevailing New York law continues to treat a dog as just that—specifically, as “chattel.” (4)
In most non-matrimonial actions regarding ownership and possession of dogs, unless a dog is a pure-bred show dog, the most an owner can expect to recover for negligent care of or failure to return a dog is the animal’s fair mar- ket value. The aggrieved owner would pursue an action for “replevin,” where the standard is defined as superior possessory right in the chattel, thus based solely upon the property rights of the litigants, rather than their respective abilities to care for the pet or emotional ties. (5) Cooper notes only one New York case where temporary possession of a dog was granted to a wife in a matrimonial action, which decision was based solely upon the fact that the dog was an interspousal gift to her. (6)
Yet a few New York cases showed that courts were willing to acknowledge the importance of pets beyond that of ordinary, inanimate property. In Corso v. Crawford Dog and Cat Hospital, Inc., (7) the plaintiff recovered damages beyond the market value of the dog whose remains were wrongly disposed of by a veterinarian, holding that “a pet is not just a thing but occupies a special place somewhere in between a person and a personal piece of property.” In Feger v. Warwick Animal Shelter, (8) the court observed that “companion animals are treated differently from other forms of property. Recognizing companion animals as a special category of property is consistent with the laws of the State.”
Justice Cooper then engaged in a nationwide survey of the analyses utilized in pet-related disputes, finding that while there were a small number of cases that actually used the term “custody” when making an award of a dog to a spouse, (9) the majority of cases from other jurisdictions have declined to extend full-fledged child custody precepts to pet-related disputes, such as the “best interests” standard. (10)
Finally, Justice Cooper turned to the most relevant New York case, Raymond v. Lachmann, (11) to inform his decision, a case involving a dispute over the ownership and possession of an elderly cat named Lovey. The First Department wrote:
Cognizant of the cherished status ac- corded 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, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.
From here Justice Cooper finds the standard he would apply to the Travis v. Murray matter: “best for all concerned.” He notes that the concept of a household pet being treated as mere property is outmoded and that the court in Raymond offered a perspective for determining possession of a pet that differs radically from traditional property analysis. Yet, while the factors in the decision included concern for the animal’s well-being and the relationship that existed between the cat and the person with whom he lived, the court stopped short of applying a traditional “best interests” child custody standard. The judge states that it is impossible to truly determine what is in a dog’s best interests and that the subjective factors that are key to a best interests analysis—particularly those concerning a child’s feelings or perceptions—are unascertainable when the subject is an animal.
Judicial resources are also cited as a major concern in limiting the scope of the standard applied in pet-related disputes. A court needs a tremendous amount of information in child custody disputes, often necessitating the appointment of an attorney for the child and a forensic psychologist, collateral interviews, testimony, and possibly in camera proceedings with the children themselves. Justice Cooper notes that our court system is already overwhelmed with child custody cases and to allow full- blown “dog custody” cases in which the same “best interests” analysis is applied would further burden the courts to the detriment of children.
Cooper also recognizes the reality that significant judicial resources are already devoted to matters such as who gets a luxury car or second home, and therefore room should rightly be made in order to give real consideration to a case involving a treasured pet.
Accordingly, Justice Cooper granted the parties a full one-day hearing, where he would apply a “best for all concerned” standard. Each side would have the opportunity to prove why she would benefit from having the dog and why the dog would have a better chance of living, prospering, loving and being loved in her care. The judge advised the parties to address questions such as: Who bore the major responsibility for meeting Joey’s needs (feeding, walking, grooming, trips to the veterinarian)? Who spent more time with Joey on a regular basis? Why did Ms. Travis leave Joey with Ms. Murray at the time of separation? Why did Ms. Murray send Joey to live in Maine with her mother rather than have him stay with her or Ms. Travis in New York?
The judge made it clear that the hearing would result in only one party retaining sole possession of the dog and that he would not entertain any kind of joint custody or visitation arrangements, which would result in both par- ties remaining involved in the dog’s life, thus inviting post-judgment litigation. Again, Justice Cooper voiced his concern that judicial resources in cases of pet disputes be limited, stating that “while children are important enough to merit endless litigation, as unfortunate as that may be, dogs, as wonderful as they are, simply do not rise to that level of importance.”
Shortly after receiving the decision, Ms. Travis and Ms. Murray settled privately with the aid of their attor- neys. Rhonda Panken, Esq. represented Ms. Travis and I represented Ms. Murray. While the hearing was ulti- mately unnecessary, Justice Cooper has indeed crafted a thoughtful and thorough analysis that should help both courts and practitioners deal more successfully with dis- putes over beloved pets in the wake of a divorce.
- 42 Misc 3d 447 (Sup Ct NY Co 2013).
- John Homans, The Rise of Dog Identity Politics, New York, Feb. 1, 2010; Gregory Berns, Dogs Are People, Too, New York Times, Oct. 6, 2013; Alexandra Zissu, After the Breakup, Here Comes the Joint- Custody Pet, New York Times, Aug. 22, 1999.
- Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrim. Law 1 (2006); Derek Thompson, TheAtlantic. com, These 4 Charts Explain Exactly How Americans Spend $52 Billion on Our Pets in a Year, http://www.theatlantic.com/business/ archive/2013/02/these-4-charts-explain-exactly-how-americans- spend-52-billion-on-our-pets-in-a-year/273446/(Feb. 23, 2013).
- See Mullaly v. People, 86 NY 365 ; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150 (1st Dept 2004); Rowan v. Sussdorff, 147 App Div 673 (2d Dept 1911); ATM One, LLC v. Albano, 2001 NY Slip Op 50103[U] [Nassau Dist Ct 2001].
- See, e.g., Jason v. Parks, 224 AD2d 494 (2d Dept 1996); Mercurio v. Weber, 2003 NY Slip Op 51036[U] (Nassau Dis Ct 2003); Merriam v. Johnson, 116 App Div 336 (1st Dept 1906); LeConte v. Lee, 35 Misc 3d 286 (Civ Ct, NY County 2011); Webb v. Papaspiridakos, 23 Misc 3d 1136[A], 2009 NY Slip Op 51152[U] (Sup Ct, Queens County 2009); Saunders v. Reeger, 50 Misc 2d 850 (Suffolk Dist Ct 1966).
- C.R.S. v. T.K.S., 192 Misc 2d 547 (Sup Ct, NY County 2002).
- 97 Misc 2d 530 (Civ Ct, Queens County 1979).
- 59 AD3d 68 (2d Dept 2008).
- See e.g., Juelfs v. Gough, 41 P3d 593 (Alaska 2002) (granting “sole custody” of a dog to ex-husband); Van Arsdale v. Van Arsdale, 2013 WL 1365358, *4 (2013), 2013 Conn Super LEXIS 574 (granting “joint legal custody” of dogs, with “principal place of residence” to plaintiff); Placey v. Placey, 51 So3d 374 (Ala Ct Civ App 2010) (awarding dog to one party, expressly referring to the “best interests” of the dog).
- See e.g., Desanctis v. Pritchard, 803 A2d 230, 232 (Pa Super Ct 2002) (declining to award “shared custody” of a dog because he is “personal property,” such as a table or lamp); Clark v. McGinnis, 298 P3d 1137 (Kan Ct App 2013) (declining to award custody of a dog, holding that the “argument that child custody laws should be applied to dogs is a flawed argument”).
- 264 AD2d 340 (1st Dept 1999).
NYSBA Family Law Review | Spring 2014 | Vol. 46 | No. 1