Besides child custody, property division, or alimony, one of the most contentious topics in divorce law is pet custody. Divorcing couples will engage in a heated battled for the custody of their beloved dog, cat, or even horse.
Courts have traditionally treated pets as personal property in such cases, but that is beginning to change as some state lawmakers and advocacy groups have promoted the notion that the legal system should act in the best interests of animals. In 2017, Alaska became the first state to enact legislation regarding pet custody, allowing the courts to consider the pet’s well-being. In New York’s neighboring state of Rhode Island, a state representative has introduced a similar bill to Alaska’s.
According to a study of matrimonial attorneys nationwide by the American Academy of Matrimonial Lawyers, 27 percent of survey respondents “noted an increase in pet custody cases during the past five years.” Dogs are responsible for 88 percent of the most disputed cases, while cats came in second at five percent. Other types of pets came in third, while horses came in fourth at one percent.
New York courts have expressly held that pets are not considered children, so the custody of the family pet will not be based on the standard of “the best interests of the child.” However, pets may not be treated as personal property either. Rather, to determine custody of pets, New York courts will use a “best for all concerned” standard.
A court will consider the following factors when determining which party should obtain custody of the family pet:
- How the pet was obtained
- How the pet was cared for throughout the relationship
- The actual arrangement between the parties for spending time with a pet after the parties divorce or separate
Additionally, when a judge considers pet “time-sharing,” he or she also considers the presence of children. In cases where children are involved in a divorce, the pet typically remains in the home where the children will be residing. Since divorce can be traumatic itself, the potential of losing a pet can have a negative impact on the kids.