There are several ways in which legal thinking differs from common sense, and one of them has to do with the way we think about our pets. Or at least this was true in New York until recently. Dogs, cats, and turtles were all treated like sofas, chairs, and TV sets – that is, as personal property. The only value they were given (in legal decisions) was their monetary value.
But one look at your dog looking at you with those loving and soulful eyes will tell you that the bond between humans and their “best friends” has nothing to do with your wealth or the cost of the dog. One short walk down a New York City street will remind you that we see our dogs and cats as family members – and the thought of them being treated like objects is reprehensible to many.
So if a divorcing couple cannot decide where Fido should live, what standard is a judge to use? Our courts grappled with this for several years until 2021, when the New York State legislature finally determined that “in awarding the possession of a companion animal, the court shall consider the best interest of such animal.” NY DRL § 236B(5)(d)(15).
Let’s break this down – first of all, it only applies to “companion” animals, distinguishable from “service” animals. So it would not apply, for instance, to a seeing-eye dog. Nor would it apply to cows and pigs, I would think.
But how is a court to determine what is in the pet’s best interest, when the pet itself cannot talk? The “best interests” standard is common in child custody decisions but is not defined under NYS statute even for decisions involving children. So how would it be applied to animals?
In an important 2013 decision, the Hon. Matthew Cooper held that a dog custody determination must not only consider what value the dog had to its owners but must measure the quality of life the owners gave to the dog. Travis v Murray, 42 Misc3d 447 (NY 2013). The statute now does away with any reference to the value of the pet to its owners and focuses solely on which owner can give the pet a better life. Author Rachel Bouwma suggests that courts consider less subjective considerations, including:
- Who spends the most time with the animal?
- Who feeds the animal?
- Who walks and grooms the animal?
- Does each caregiver have space for the animal?
- Which caregiver would have more time for the animal?
Dogs and cats ARE members of the family – and it’s great that their needs are being taken into consideration! I welcome your thoughts – and experiences with this!