Custody of Pets

Ask any matrimonial lawyer what he or she believes is the most difficult aspect of a divorce, and many will say parenting and custody issues. Custody involves so much more than just financial stability: It concerns the well-being of children, and the physical and emotional bond they share with their parents. In many contested cases, parties hire a custody and parenting time evaluator to determine what is in the best interests of a child. However, what do you do when parties have pets that they consider to be tantamount to children?'

Custody cases involving pets are on the rise across the United States. A survey of the members of the 1,600-member American Academy of Matrimonial Lawyers conducted in 2006 indicated that “pet custody” cases had increased noticeably since 2001. In some law offices across the country, pet custody cases have grown by as much as 15%. In this day and age, most judges are viewing pets as more akin to children than typical household personalty. Judges have been recognizing that people have strong emotional attachments to their animals.

Take, for example, a natural disaster such as Hurricane Katrina. When the hurricane hit, many of people were forced to leave their homes without their pets, some fearing they would never see them again. Most of the people displaced from their homes endured long searches after the hurricane to find animals they were forced to leave behind. Many of these pets were rescued and ferried to safety without their owners. The documentary entitled “Mine” tells the stories of people who found their pets in new homes, but with the wrinkle that the rescuers or adopters of the animals did not want to give the pets back. A few, with the help of good Samaritans, as well as lawyers, fought to get their pets back, sometimes for a period of years. However, it does not take a natural disaster to create a conflict over ownership of a beloved animal.

Pets in a Divorce

When couples split, the animals may find themselves in the middle of a custody battle. Ending a relationship is an anxious time with many uncertainties, and when animal companions are involved, the situation becomes even more tense. Companion animals are defined as legal property, and the law can be very cruel during this emotional time.

For example, when child custody is the issue, many states look to the “best interests” of that child in making important decisions about his or her life. As with most litigation, if the parents can come to an agreement on their own, and preferably before litigation ensues, the judge is not burdened with the task of deciding the child's fate in the first place. It is much more empowering for parents to work together to create their own agreement rather than have a judge decide for them. Having an agreement will also save them money in legal fees.

In the 2009 case of Houseman v. Dare, 405 N.J. Super 538 (2009), the New Jersey appellate court noted that pets can be distinguished from other forms of property because they have a “unique sentimental value.” The Appellate Division indicated that, “[t]here is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet, based on one party's sincere affection for an attachment to it, than in resolving competing claims based on one party's sincere sentiment for an inanimate object based on a relationship with the donor.”

The panel declined to adopt a best-interests-of-the-pet standard, and Judge Jane Grall said that “although a court could decide who had a special interest in possession of a pet, it was 'less confident that there are judicially discoverable standards for resolving questions of possession from the perspective of a pet, as least apart from cases involving abuse or neglect, contrary to public policies in the laws designed to protect animals.'” Houseman was the first family law decision in New Jersey to recognize a special significant value in animals and one of only a few cases across the county to deal with the issue of pet custody.

A lawyer can therefore argue that animals are a special kind of unique and irreplaceable property. Such property, like an antique or valuable painting, is treated differently under the law. As a result of the public outcry and increased cases involving the custody of pets, courts across the country have considered the best interest of the pets in determining who gets custody of them. Courts have also awarded shared custody, visitation and alimony payments to owners.

When crafting a shared-possession or pet-custody arrangement, courts may consider many factors. Some of these factors are:

• Whether either person owned the pet before the relationship started;
• Who has a better ability to care for the pet;
• Who pays the veterinarian bills and buys the pet food;
• If a child owns or has a special attachment to the pet, then who has primary custody of the child; and
• Who took care of the pet's basic everyday needs, including feeding, walking and general care.

Domestic Abuse

Pet custody cases are markedly different in situations involving domestic abuse. Often, victims of domestic violence refuse to leave the abuse situation because he or she does not want the family animal left alone with the abuser. In 2007, California and Illinois enacted legislation to protect animals in such domestic violence situations, and several additional states have since considered similar measures. These types of laws allow courts to include pets in domestic violence restraining orders and also to require law enforcement to remove the animals from domestic violence situations when they are removing the victims to a safe home.

In the States

The New Jersey case of Houseman v. Dare continues a trend set by decisions in a handful of other states, and helps set precedent that can be used in states where courts have not yet considered the issues. However, New Jersey is not the first state to delve deeper into pet custody as more than just simple property law in deciding custody of household pets. Similar questions have been raised in California, Florida, and Pennsylvania. Though there are no definitive results or trends, the issue is gaining significant judicial attention and is becoming ripe for clarified precedence.

In Michigan, pets are looked upon as property and the judges do not determine pet custody arrangements. There have been cases in which the divorce judgment set forth a schedule for pet custody divided between the former spouses, and the judges have actually stricken this language from the document, on the basis that they will not be involved in pet custody disputes. However, there is a trend in other states where the courts will look at pet custody. Some courts have tried to settle pet custody disputes by making arrangements that are similar to those used in child custody cases. Examples include judgments that outline what days of the week pets will spend with each party, as well as issues concerning medical care and stipulations for pet day care if both parties work.

The laws from state to state offer no consistency, as each state seems to view this issue differently. There can be an agreement whereby one party gets one pet and another party gets the other pet, but courts will not spell out visitation issues for pets. An exception is medical expenses, which can be included in a Judgment of Divorce because vet bills, especially when pets are aging, can run into thousands of dollars.

When pets are considered property, another issue surfaces: What is their value? Many owners have dogs for many years, and to these people, their pets are priceless. In determining its value, the courts will say that it is not the emotional value to the owner, rather, it is the monetary value in replacing the dog. A mixed-breed dog will not have a lot of value. A rare pedigree or show dog will have much more value.

Getting Custody of a Pet

There are five factors to consider in pet custody cases:

1. Keep the best interest of the pet in mind. Although the courts may view your pet as property, you know that your pet has feelings and needs. These should be kept in mind when determining custody.
2. Talk with your spouse regarding pet custody to see if you can arrive at a mutually satisfying agreement.
3. Be prepared to compromise if your spouse does not agree to give you custody. Give up other property that your spouse wants in exchange for keeping the pet.
4. Tell your attorney how important custody of your pet is to you.
5. Take your claim to court if you cannot work it out with your spouse.

Conclusion

Even if the laws in this country are changed to allow for broader considerations in the determination of pet custody, there will still be many unanswered questions, such as which relationship and which species should qualify for protection. Thousands of attorneys across the country are developing creative arguments ' and open-mindedness on the part of judges is just starting to lay the groundwork for future case law and potential for change in our legal system.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. He has been involved in all facets of matrimonial law over the span of his four decades of practice. Jeremy J. Sturgeon is also with the firm, and concentrates his practice on the areas of matrimonial/family law.

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Ask any matrimonial lawyer what he or she believes is the most difficult aspect of a divorce, and many will say parenting and custody issues. Custody involves so much more than just financial stability: It concerns the well-being of children, and the physical and emotional bond they share with their parents. In many contested cases, parties hire a custody and parenting time evaluator to determine what is in the best interests of a child. However, what do you do when parties have pets that they consider to be tantamount to children?'

Custody cases involving pets are on the rise across the United States. A survey of the members of the 1,600-member American Academy of Matrimonial Lawyers conducted in 2006 indicated that “pet custody” cases had increased noticeably since 2001. In some law offices across the country, pet custody cases have grown by as much as 15%. In this day and age, most judges are viewing pets as more akin to children than typical household personalty. Judges have been recognizing that people have strong emotional attachments to their animals.

Take, for example, a natural disaster such as Hurricane Katrina. When the hurricane hit, many of people were forced to leave their homes without their pets, some fearing they would never see them again. Most of the people displaced from their homes endured long searches after the hurricane to find animals they were forced to leave behind. Many of these pets were rescued and ferried to safety without their owners. The documentary entitled “Mine” tells the stories of people who found their pets in new homes, but with the wrinkle that the rescuers or adopters of the animals did not want to give the pets back. A few, with the help of good Samaritans, as well as lawyers, fought to get their pets back, sometimes for a period of years. However, it does not take a natural disaster to create a conflict over ownership of a beloved animal.

Pets in a Divorce

When couples split, the animals may find themselves in the middle of a custody battle. Ending a relationship is an anxious time with many uncertainties, and when animal companions are involved, the situation becomes even more tense. Companion animals are defined as legal property, and the law can be very cruel during this emotional time.

For example, when child custody is the issue, many states look to the “best interests” of that child in making important decisions about his or her life. As with most litigation, if the parents can come to an agreement on their own, and preferably before litigation ensues, the judge is not burdened with the task of deciding the child's fate in the first place. It is much more empowering for parents to work together to create their own agreement rather than have a judge decide for them. Having an agreement will also save them money in legal fees.

In the 2009 case of Houseman v. Dare, 405 N.J. Super 538 (2009), the New Jersey appellate court noted that pets can be distinguished from other forms of property because they have a “unique sentimental value.” The Appellate Division indicated that, “[t]here is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet, based on one party's sincere affection for an attachment to it, than in resolving competing claims based on one party's sincere sentiment for an inanimate object based on a relationship with the donor.”

The panel declined to adopt a best-interests-of-the-pet standard, and Judge Jane Grall said that “although a court could decide who had a special interest in possession of a pet, it was 'less confident that there are judicially discoverable standards for resolving questions of possession from the perspective of a pet, as least apart from cases involving abuse or neglect, contrary to public policies in the laws designed to protect animals.'” Houseman was the first family law decision in New Jersey to recognize a special significant value in animals and one of only a few cases across the county to deal with the issue of pet custody.

A lawyer can therefore argue that animals are a special kind of unique and irreplaceable property. Such property, like an antique or valuable painting, is treated differently under the law. As a result of the public outcry and increased cases involving the custody of pets, courts across the country have considered the best interest of the pets in determining who gets custody of them. Courts have also awarded shared custody, visitation and alimony payments to owners.

When crafting a shared-possession or pet-custody arrangement, courts may consider many factors. Some of these factors are:

• Whether either person owned the pet before the relationship started;
• Who has a better ability to care for the pet;
• Who pays the veterinarian bills and buys the pet food;
• If a child owns or has a special attachment to the pet, then who has primary custody of the child; and
• Who took care of the pet's basic everyday needs, including feeding, walking and general care.

Domestic Abuse

Pet custody cases are markedly different in situations involving domestic abuse. Often, victims of domestic violence refuse to leave the abuse situation because he or she does not want the family animal left alone with the abuser. In 2007, California and Illinois enacted legislation to protect animals in such domestic violence situations, and several additional states have since considered similar measures. These types of laws allow courts to include pets in domestic violence restraining orders and also to require law enforcement to remove the animals from domestic violence situations when they are removing the victims to a safe home.

In the States

The New Jersey case of Houseman v. Dare continues a trend set by decisions in a handful of other states, and helps set precedent that can be used in states where courts have not yet considered the issues. However, New Jersey is not the first state to delve deeper into pet custody as more than just simple property law in deciding custody of household pets. Similar questions have been raised in California, Florida, and Pennsylvania. Though there are no definitive results or trends, the issue is gaining significant judicial attention and is becoming ripe for clarified precedence.

In Michigan, pets are looked upon as property and the judges do not determine pet custody arrangements. There have been cases in which the divorce judgment set forth a schedule for pet custody divided between the former spouses, and the judges have actually stricken this language from the document, on the basis that they will not be involved in pet custody disputes. However, there is a trend in other states where the courts will look at pet custody. Some courts have tried to settle pet custody disputes by making arrangements that are similar to those used in child custody cases. Examples include judgments that outline what days of the week pets will spend with each party, as well as issues concerning medical care and stipulations for pet day care if both parties work.

The laws from state to state offer no consistency, as each state seems to view this issue differently. There can be an agreement whereby one party gets one pet and another party gets the other pet, but courts will not spell out visitation issues for pets. An exception is medical expenses, which can be included in a Judgment of Divorce because vet bills, especially when pets are aging, can run into thousands of dollars.

When pets are considered property, another issue surfaces: What is their value? Many owners have dogs for many years, and to these people, their pets are priceless. In determining its value, the courts will say that it is not the emotional value to the owner, rather, it is the monetary value in replacing the dog. A mixed-breed dog will not have a lot of value. A rare pedigree or show dog will have much more value.

Getting Custody of a Pet

There are five factors to consider in pet custody cases:

1. Keep the best interest of the pet in mind. Although the courts may view your pet as property, you know that your pet has feelings and needs. These should be kept in mind when determining custody.
2. Talk with your spouse regarding pet custody to see if you can arrive at a mutually satisfying agreement.
3. Be prepared to compromise if your spouse does not agree to give you custody. Give up other property that your spouse wants in exchange for keeping the pet.
4. Tell your attorney how important custody of your pet is to you.
5. Take your claim to court if you cannot work it out with your spouse.

Conclusion

Even if the laws in this country are changed to allow for broader considerations in the determination of pet custody, there will still be many unanswered questions, such as which relationship and which species should qualify for protection. Thousands of attorneys across the country are developing creative arguments ' and open-mindedness on the part of judges is just starting to lay the groundwork for future case law and potential for change in our legal system.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. He has been involved in all facets of matrimonial law over the span of his four decades of practice. Jeremy J. Sturgeon is also with the firm, and concentrates his practice on the areas of matrimonial/family law.

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