In May 2021, the New York State Legislature passed a bill proposing the adoption of the “best interest” standard in determining the custody of pets. Governor Hochul signed the bill on Oct. 25, 2021 and, effective immediately, the new state law now requires the court to apply many of the same factors in determining the custody of pets as it applies in determining custody in the “best interest” of a child.
These factors include but are not limited to: (1) the quality of the home environment, (2) the level of parental guidance, (3) the particular needs of the child, (4) the child’s preference (if applicable) and (5) the desirability of keeping siblings together. As stated by the Court of Appeals in Eschbach v. Eschbach, 56 N.Y.2d 167 (1982), “in considering questions of child custody” the court “must make every effort to determine ‘what is for the best interest of the child, and what will best promote its welfare and happiness.’” Clearly, the “best interests” analysis is a complicated, time-consuming, and costly process. Other often necessary considerations include testimony by a party and/or expert, appointing an attorney for the child, in camera reviews, forensic and psychological evaluations, and other professionally prepared reports.
The new state law raises many issues including what consideration should be given to the allocation of resources with respect to pet custody, when people are waiting months and sometimes years to have their child custody cases determined. Is New York opening the courthouse doors to hear testimony about which party is best suited to have custody of the dog, cat, and parakeet? Will experts such as Certified Pet Behavior consultants testify about the best interest of the pet? Will our judges be hearing about issues such as pet access, legal custody for pets (meaning which pet parent makes the major decisions for the pet), modification of custody, and enforcement proceedings? Will the judiciary be holding in cameras for pets? What will happen when one party believes the other is party is not living up to the court order or if there is a substantial change in circumstances that would warrant a change in custody? Where will it end?
While animals were historically domesticated for purposes of utility, the relationship between animals and humans has developed to focus on the companionship an animal provides. Since the beginning of the pandemic, the American Society for the Prevention of Cruelty to Animals (ASPCA) reported that one in five households acquired a “pandemic pet,” accounting for nearly 23 million American households. Notwithstanding the ever-increasing shift in our culture to pets as family members, the majority of courts continue to classify pets as personal property or “chattels,” analogous to household furniture.
New York courts have historically struggled with how to determine issues of pet “custody,” with the traditional property analysis often yielding inconsistent results. Upon marital dissolution, property distribution is governed by Domestic Relations Law §236B(5) and may be awarded on an interim or final basis. However, this approach fails to acknowledge the emotional bond between pets and their owners. Emphasizing that companion animals cannot be treated and valued in the same manner as other marital assets, some courts have held that, although still technically considered “property,” pets deserve “a special place somewhere in between a person and a piece of property.” Corso v. Crawford Dog and Cat Hospital, 99 Misc.2d 530, 531 (Civ. Ct., City of N.Y., Queens Co. 1979). To provide judges with a uniform standard and promote predictability, Sen. James Skoufis and Assembly-Member Deborah Glick introduced S.4248/A.5775, adding a new factor to the equitable distribution law for applying the “best interests” analysis used in child custody determinations to the determination of possession of a marital companion animal (as defined by Agriculture and Markets Law §350(5)). Interestingly, New York courts have found a horse (see People v. Michael Lohnes, 112 A.D.3d 1148 (2013)) and pet goldfish (see People v. Garcia, 29 A.D.3d 255 (2006)), to qualify as companion animals. The legislature noted several public policy considerations including that, for many families, pets are the equivalent of children and must be granted more consideration by courts to ensure their proper care after a divorce.
Prior to this change in the law, New York courts were divided as to the proper standard to apply in awarding possession of the marital pet to one spouse—some courts guided by property law and others by the law governing child custody decisions. Utilizing a pure property analysis, the court in C.R.S. v. T.K.S., 192 Misc.2d 547 (2002), awarded the wife temporary possession of the marital dog pending a final judgment. However, some courts that have refused to apply a strict property analysis also rejected the subjective “best interests” analysis, implementing an objective, judicially crafted “best for all concerned” standard to avoid both extremes. Although this “quasi-interests based” standard still involves partial adherence to equitable distribution, it differs radically from the traditional property analysis. Travis v. Murray, 42 Misc.3d 447 (2013), illustrates how the judicial standard affords paramount importance to “the intangible, highly subjective factors” relevant to the unique nature of animals as property. In critique of C.R.S., the Travis court opined that a strict property analysis was “neither desirable nor appropriate.” Instead, the court relied on the “best for all concerned” standard first developed in the 1999 decision of Raymond v. Lachmann, 264 A.D.2d 340 (1999), as to “dechattelization” of household pets.
Despite its novel perspective for determining possession of a pet, the Raymond decision provided little guidance as to the factors considered, with its reasoning not substantively expanded upon until Travis. The court in Travis specified that if judicial resources can be devoted to matters including “who gets to stay in the Hamptons home instead of the Aspen chalet,” such resources can also be devoted to serious consideration of possession of the marital pet. However, in ordering a “full hearing” for the court to hear evidence from the parties about “what is best for all concerned,” the court deliberately limited the time and judicial resources set aside for the hearing, not exceeding one day, as well as the resources required to implement the decision. In terms of evidence submitted, each party will have the “opportunity to prove not only why he/she will benefit from having the animal in their life but also why the animal has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other.” 42 Misc.3d 447, 460 (Sup. Ct. 2013). The Travis decision demonstrates that although typical property-related ownership concepts, such as the source of the funds used for the purchase of the pet or whether the animal was received as a gift are relevant, they are not the only factors to consider in determining who would receive the companion animal.
Significantly, the Travis decision expressly did not endorse a “best interests” analysis. In fact, the Travis court concluded it was “obviously … unworkable and unwarranted” due to the impossibility of determining what is in a pet’s best interests. The “best interests” standard is problematic for a variety of reasons including that the subjective factors essential to a best interests analysis, such as evidence relating to a child’s feelings or perceptions, may be difficult if not impossible to ascertain as it concerns a pet. Child custody determinations require a tremendous amount of factual information. The proposed legislation will need to deal with the foregoing issue while balancing the increasingly limited judicial resources, exacerbated with the pandemic. Interestingly, the new law ignores the possibility of addressing pet custody through the “best for all concerned” standard.
Although the justifications for the new state law may be well-intended, mandating a “best interests” standard for “pet custody” will surely place another burden to an already overwhelmed process. As divorcing parties become more litigious, expanding the law to include such standard may invite even more litigation over issues such as where and if to send the dog to training school, choosing an animal behavior therapist, or presenting neighbor testimony of who walked the dog most.
A statutory standard for awarding possession of a marital companion animal is highly desirable in creating a uniform standard for the determination and assisting judges in simplifying their decision-making process. The issue is not whether we need to create such a uniform standard but instead what uniform standard should be created and how to make it workable given the amount of available resources and the need for finality as it pertains to pet custody.
Reprinted with permission from the October 29, 2021 edition of the New York Law Journal© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected]
Lisa Zeiderman is managing partner at Miller Zeiderman. Felicia Crispino, an intern at the firm and J.D. candidate at Fordham University School of Law, assisted in the preparation of this article.