“Best Interests of the Hamster?” A False Equivalency and Absurdity in Proposed Pet Custody Legislation

By Lee Rosenberg

“Best Interests of the Hamster?” A False Equivalency and Absurdity in Proposed Pet Custody Legislation

8.25.2021

By Lee Rosenberg

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As of the writing of this article, legislation has been signed by both chambers of the New York State Legislation mandating our matrimonial law judges to consider the “best interests” of a companion animal in determining placement. That legislation–Assembly Bill A5775/Senate Bill S 4248–which has been sent to the governor seeks to add a factor to the equitable distribution law1 as follows:

in awarding the possession of a companion animal, the court shall consider the best interest of such animal. “Companion animal,” as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law . . . (Emphasis added)

Agriculture and Markets Law Section 350(5) provides:

“Companion animal” or “pet” means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. “Pet” or “companion animal” shall not include a “farm animal” as defined in this section.2 (Emphasis added.)

The “best interests” standard remains that which guides the court in determining custody of children.3 As stated by the Court in Appeals in Eschbach v. Eschbach,4 “Any court in considering questions of child custody must make every effort to determine ‘what is for the best interest of the child, and what will best promote its welfare and happiness.’” Using the totality of the circumstances approach to determine best interests, the court considers various factors developed by case law.5 The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary. “In matters of this character ‘the findings of the nisi prius court must be accorded the greatest respect.’”6 (Emphasis added.)

A variety of best interests factors have been cited by our courts over the years:

In making a best interests determination, Family Court must consider such factors as “the quality of the parents’ respective home environments, the need for stability in the child[ren]’s li[ves], each parent’s willingness to promote a positive relationship between the child[ren] and the other parent and each parent’s past performance, relative fitness and ability to provide for the child[ren]’s intellectual and emotional development and overall wellbeing.7

In determining the best interests of the child, the courts consider “(1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) quality of the child’s home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child’s emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings.” (Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] . . .8

“The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” (Matter of Turcios v. Cordero, 173 A.D.3d 1048, 1049, 100 N.Y.S.3d 569; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). “Among the factors to be considered are ‘the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent’” (Matter of Nieves v. Nieves, 176 A.D.3d 824, 826, 111 N.Y.S.3d 673, quoting Matter of Saunders v. Scott, 172 A.D.3d 724, 726, 100 N.Y.S.3d 40). “The existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances” (see Matter of Nieves v. Nieves, 176 A.D.3d at 826, 111 N.Y.S.3d 673; Matter of Alonso v. Perdue, 163 A.D.3d 658, 81 N.Y.S.3d 143; Matter of Jackson v. Jackson, 157 A.D.3d 694, 68 N.Y.S.3d 506). “’The court’s determination depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents’” (Matter of Toro v. Williams, 167 A.D.3d 634, 635, 89 N.Y.S.3d 228, quoting Matter of Blanco v. Corbett, 8 A.D.3d 374, 374, 777 N.Y.S.2d 735). “The credibility findings of the court are entitled to great weight and should not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Toro v. Williams, 167 A.D.3d at 635, 89 N.Y.S.3d 228; see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Acosta v. Melendez, 179 A.D.3d 912, 913, 118 N.Y.S.3d 730).9

Clearly, the best interests concept is complicated. It is also a time-consuming and costly process, ultimately requiring a hearing and, in the context of child custody–forensic evaluation and an attorney for the child are components to that determination. Mandating a best interests standard to “pet custody” would add an unnecessary layer to an already overburdened process and is fraught with uncertainty in its application. That the same standard is to be applied to broadly defined “companion animals” as children, provides for an absurd equivalency. That the legislation as proposed requires the court to engage in this best interests analysis—through the use of the word “shall”—shackles the court’s discretion in fashioning an approach to the issue; it provides a distraction from the court’s other necessary functions, lengthens the duration of the proceedings, and increases costs to the litigants. This is an issue which is already addressable by the court without the need to resort to a best interests standard.

History and Existing Remedies

Historically, animals, including traditional pets, are “chattel.”10 This, notwithstanding the vaunted role some animals have had throughout history—cats in ancient Egypt; the significance of elephants in fertility and luck in certain cultures; dogs in royal European portraits; noble Arabian steeds in the Middle East, and, of course, in the modern sense, pets, who are also considered to be family if not “children” especially where the couple has no human children. The standard at law for recovery of chattel is a replevin action—“superior possessory right in the chattel.”11

While still technically property, some courts have recognized that they are more than that, and it is not unusual for divorcing couples to provide for rights or shared time upon separation or divorce.12 Despite their status as chattel, New York has long sought to protect animals from cruelty.13 Trusts are also available to be created for the benefit of a domestic pet or animal.14

In the context of an equitable distribution matter, property distribution is governed by Domestic Relations Law § 236B(5) and its predecessor from pre-June 19, 1980, when New York was a “title” state and not an “equitable distribution” state. In addition, under DRL § 234, the court may award title to or possession of property on an interim or final basis:

In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment. (Emphasis added.)

Family Court Act § 842, providing for orders of protection (including “stay away” orders) when family offenses are committed, was amended in 2012 to extend protections to the same category of pets and companion animals as are the subject of the proposed best interests legislation.

An order of protection under section eight hundred fortyone of this part shall set forth reasonable conditions of behavior to be observed for a period not in excess of two years by the petitioner or respondent or for a period not in excess of five years upon (i) a finding by the court on the record of the existence of aggravating circumstances as defined in paragraph (vii) of subdivision (a) of section eight hundred twentyseven of this article; or (ii) a finding by the court on the record that the conduct alleged in the petition is in violation of a valid order of protection. Any finding of aggravating circumstances pursuant to this section shall be stated on the record and upon the order of protection. The court may also, upon motion, extend the order of protection for a reasonable period of time upon a showing of good cause or consent of the parties. The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order. The court must articulate a basis for its decision on the record. The duration of any temporary order shall not by itself be a factor in determining the length or issuance of any final order. Any order of protection issued pursuant to this section shall specify if an order of probation is in effect. Any order of protection issued pursuant to this section may require the petitioner or the respondent:

…(i) 1. to refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household.

2. “Companion animal,” as used in this section, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law;15

Only three states have pet “custody” laws—Alaska, Illinois, and California, which provide for court discretion in addressing the issue.16

The California statute at Family Code § 2605, effective on January 1, 2019, provides that the court

may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal. (Emphasis added.)

The Alaska statute, AK § 25.24.160, states,

(a) In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide. . . (5) if an animal is owned, for the ownership or joint ownership of the animal, taking into consideration the wellbeing of the animal.17

The Illinois law, 750 ILCS Part 5 §501, states,

(f) Companion animals. Either party may petition or move for the temporary allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the wellbeing of the companion animal. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act. (Emphasis added.)

Children, unlike companion animals are “wards of the court” which acts in parens patrie.18 As was long ago stated by one sitting jurist,

Each case, of necessity, must be a law unto itself. It cannot be doubted that the Supreme Court as the guardian of all infants under its extraordinary equity powers may in a proper case award the custody of an infant to one not legally entitled thereto. The welfare of the child has always been recognized as the paramount consideration. The child is not a chattel. The parent has no proprietary right to his custody as such. Instances are not uncommon where the court has interfered even with the control of a parent. The claims of parents are always subordinate to the welfare of children. My duty, and my only duty, is to look to the child’s welfare and to decide accordingly.19

Modern New York Approach

In CRS v. TKS,20 Justice Marjory D. Fields addressed the husband’s attempt to stop the transfer of the parties’ Chocolate Lab as an improper advance distribution of property “no different than a sofa, home or bank account.” While acknowledging it as “chattel” and not addressing the more personal aspects of the pet, the court citing to DRL § 234,

in its discretion as justice requires and having given due regard to the circumstances of the case and of the respective parties, adheres to its award of temporary possession of the parties’ dog to defendant pending final judgment. The determination of the final distributive award of the dog will be made at trial. A credit for any proven value of the dog could be made at that time. The court notes that the time and money expended litigating this issue could have been used to negotiate and fund a settlement.

Some 11 years later, Justice Matthew Cooper in Travis v. Murray21 references the decision in C.R.S., and opines, clearly recognizing the uniqueness of companion animals:

Nevertheless, at the same time that the traditional property view has continued to hold sway, there has been a slow but steady move in New York case law away from looking at dogs and other household pets in what may be seen as an overly reductionist and utilitarian manner. One of the first of these cases, Corso v. Crawford Dog and Cat Hospital, Inc., 97 Misc.2d 530, 415 N.Y.S.2d 182 [Civ. Ct., Queens County 1979], involved a veterinarian who wrongfully disposed of the remains of the plaintiff’s poodle and then attempted to conceal the fact by putting the body of a dead cat in the dog’s casket. Finding that the distressed and anguished plaintiff was entitled to recover damages beyond the market value of the dog, the court held that “a pet is not just a thing but occupies a special place somewhere in between a person and a personal piece of property” (id. at 531, 415 N.Y.S.2d 182).

In this same vein, the Appellate Division, Second Department, in a 2008 case brought by a cat owner against an animal shelter, cited the extensive array of laws that exist in New York for the protection of pets (Feger v. Warwick Animal Shelter, 59 A.D.3d 68, 870 N.Y.S.2d 124 [2d Dept. 2008]). The court, after observing that “[t]he reach of our laws has been extended to animals in areas which were once reserved only for people,” went on to underscore that “[t]hese laws indicate 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 . . .” (id. at 72, 870 N.Y.S.2d 124).

. . . It is from this state though, and from the First Department in particular, that we have one of the most important statements from a “modern court” as to the “dechattelization” of household pets. The case Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 [1st Dept. 1999] is certainly the most relevant to the inquiry as to how a court should best proceed when dealing with a dispute like the one over Joey. In Raymond, the court was called upon to resolve the issue of who was entitled to “ownership and possession of the subject cat, Lovey, nee Merlin.” In a short, poignant opinion, the court wrote: Cognizant of the cherished status accorded 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 (id. at 341, 695 N.Y.S.2d 308).

Raymond is significant for both what it does and does not do. The decision is a clear statement that the concept of a household pet like Lovey being mere property is outmoded. Consequently, it employs a new perspective for determining possession and ownership of a pet, one that differs radically from the traditional property analysis. This new view takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue. The factors touched upon in the decision include the concern for Lovey’s wellbeing as an elderly cat and the special relationship that existed between him and the person with whom he was living, a relationship that is described, rather nicely, as one where Lovey has “loved and been loved.” In making its determination to keep Lovey in his present home, the First Department apparently concluded that the intangibles transcended the ordinary indicia of actual ownership or right to possession such as title, purchase, gift, and the like.

The court makes the point that “(o)bviously, the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted.” The court’s use of the word “obviously,” is unfortunately a missing element in the proposed legislation at issue in 2021. The court offers a solution born of discretion, compassion, and common sense,

With this in mind, it is appropriate that the parties here be given a full hearing. Full does not mean extended; the hearing shall not exceed one day. The standard to be applied will be what is “best for all concerned,” the standard utilized in Raymond. In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey’s needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter, in New York? (Emphasis added.)

The analysis in Travis, was followed by the court in 2019’s S.H. v. M.S.,22

The court finds significant that during the outset of these proceedings, the Mother had given the dog to her sister, rather than give Charlie to the Father, who clearly would have wanted the dog. Since this court awarded the Father temporary possession of Charlie in December 2017, the Mother never sought or requested to see Charlie, and provided no testimony as to how she would care for the dog should he be returned to her. The Mother barely addressed Charlie in her summation other than to request return of the dog. Indeed, when the Father sought Charlie’s return in 2017, the Mother indicated that she would agree to split access so long as the Father would pay for Charlie’s care. There is no evidence that Charlie is being mistreated by the Father in any way. Given the Child’s age, he has not yet formed a bond with the dog, as the Mother herself seemed to acknowledge. Further, the Mother’s detailed testimony as to her daily schedule and care of the Child would presumably leave little time to care for Charlie. For all these reasons, the court finds that the “best for all concerned” standard must result in an award of sole possession of Charlie, the dog, to the Father. Raymond v. Lachman, 264 AD2d 340, 341 (1st Dep’t 2013) and followed in Travis v. Murray, 42 Misc 3d 447, 459461 (Sup Ct. NY Cty 2013).

The same standard was also independently adopted in Mitchell v. Snyder,23 and in Hennet v. Allan,24 each involving former boyfriend and girlfriend and their dogs. In a “chattel” case, between neighbors, Finn v. Anderson,25 the court nevertheless adopted the reasoning in Travis v. Murray and also applied the “best interests of all concerned test.

Conclusion

The proposed law is not only unnecessary, given that the court in its discretion already has the ability to make this most sensitive determination, but expansion into a full blown mandatory “best interests of the pet” standard is unworkable and foolish. That it must be applied in principle to all forms of defined “companion animals” compounds the foolishness and is an inordinate waste of precious resources which must be devoted to other issues in our cases.

As divorcing parties become more and more litigious (and they are) and our pets become viewed more and more as close and important family members (and they are), the level of emotional turmoil as well as tactical positioning to be created by this proposed mandate will encourage even more litigation.

This proposed law is opposed by the New York Chapter of the American Academy of Matrimonial Lawyers and by the Executive Committee of the New York State Bar Association’s Family Law Section. The governor should not sign it into law.

This article appears in the current issue of Family Law Review, a publication of the Family Law Section. NYSBA’s Committee on Animals and the Law favors the proposed legislation with minor amendments.


1 DRL § 236B(5)(d).

2 AML § 350(4): “‘Farm animal’, as used in this article, means any ungulate, poultry, species of cattle, sheep, swine, goats, llamas, horses or furbearing animals, as defined in section 111907 of the environmental conservation law, which are raised for commercial or subsistence purposes. Furbearing animal shall not include dogs or cats.” Fur bearing animals are set forth in ECL § 11-1907 as beaver, bobcat, coyote, raccoon, sable or marten, skunk, otter, fisher, nutria and muskrat.

3 DRL § 70.

4 Eschbach v. Eschbach, 56 N.Y.2d 167 (1982).

5 See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982).

6 See Eschbach at endnote 4.

7 Jessica HH. v. Sean HH., A.D.3d (3rd Dept July 1, 2021); 2021 N.Y. Slip Op. 04165.

8 Dobson v. Messervey, 195 A.D.3d 1565 (2nd Dept 2021).

9 Turisse v. Turisse, 194 A.D.3d 1090 (2nd Dept 2021).

10 An article of personal property; any species of property not amounting to a freehold or fee in land. People v. Holbrook, 13 Johns. (N. Y.) 94; Hornblower v. Proud, 2 Barn. & Aid. 335; State v. Bartlett, 55 Me. 211; State v. Brown, 9 Baxt. (Teun.) 54, 40 Am. Rep. 81. The name given to things which in law are deemed personal property . . .” Black’s Law Dictionary.

11 See Pivar v. Graduate School of Figurative Art of NY Academy of Art, 290 A.D.2d 212 (1st Dept 2002). A cause of action for recovery of chattel (“trespass”) lies in the common law remedies of trover or replevin now codified in New York law in CPLR Article 71.

See also, Hotze v. Hotze, 57 A.D.2d 85 (4th Dept 1977) Such an action must be brought within three years (presuming no claim of conversion which, as an intentional tort is subject to a one year statute of limitations).

12 In one New Jersey case from 2009, a trial court was reversed for referencing the family pet at issue as being akin to “furniture.” https://www.today.com/news/excouplescourtfightpugmaychangelawswbna32240294.

13 See e.g., Laws of 1867, Chap. 375—An act for the more effectual prevention of cruelty to animals. Penalty for over-driving, cruelly treating animals, etc.

Section l. If any person shall over-drive, over-load, torture, torment, deprive of necessary sustenance, or unnecessarily or cruelly beat, or needlessly mutilate or kill, or cause or procure to be to be over-driven, over-loaded, tortured, tormented or deprived of necessary sustenance, or to be unnecessarily or cruelly beaten, or needlessly mutilated, or killed as aforesaid any living creature, every such offender shall, for every such offence, be guilty of a misdemeanor. JO Abb., NS., 376; 15 id., 59.

14 See EPTL § 7-8.1.

15 35 states have statutes which provide similar protections for pets. See https://awionline.org/content/includingpetsprotectionorders.

16 https://www.abajournal.com/magazine/article/petsassetsfamilydivorcecustody.

17 The Summary provision of the statute’s annotation indicates, “Courts in most states have limited awarding pets in marriage dissolution based on traditional property classifications with only a few cases considering a pet’s ‘best interests.’ This law is unique in that it gives the judge the authority to go beyond a traditional property paradigm for pets when dividing marital property.” (Emphasis added.).

18 “[I]f custody and visitation are in issue, the court’s role as parens partriae must not be usurped” (see Glauber v. Glauber, 192 A.D.2d 94, 600 N.Y.S.2d 740 [2nd Dep’t 1992]; Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624 [Court of Appeals 1925]. “The State, succeeding to the prerogative of the crown, acts as parens patriae. Sometimes the power is exercised legislatively (Domestic Relations Law, § 109, subd. 6; § 111; People v. Ewer, 141 N.Y. 129, 133135, 36 N.E. 4), sometimes constitutionally (NY Const., art. VI, § 32), but usually by the court” (See Agur v. Agur, 32 A.D.2d 16, 298 N.Y.S.2d 772 [2nd Dep’t 1969]).” Clarence M. v. Martina M., 68 Misc. 3d 457, 466 (Supreme County Kings County 2020).

19 People ex rel. Walters v. Davies, 143 Misc 759 (Sup Ct, Fulton Co. 1932).

20 192 Misc 2d 547 (Sup Ct, N.Y. Co. 2002).

21 42 Misc. 3d 447 (Sup Ct, N.Y. Co. 2013).

22 64 Misc. 3d 1204(A) (Sup Ct, N.Y. Co. 2019).

23 51 Misc3d 1229(A) (Civil Ct City of N.Y., N.Y. Co. 2016).

24 43 Misc3d 2014 (Sup Ct, Albany Co. 2014).

25 64 Misc3d 273 (City Ct Jamestown, Chautauqua Co. 2019).

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