With All Due Respect, Your Honor, We Don’t Want To Equitably Divide the Family Pets
9.20.2021
When a marriage is being dissolved, how do family pets/companion animals fit into New York State’s equitable distribution laws (D.R.L. § 236(B)(5)), which are intended to yield an equitable distribution of jointly held or acquired marital assets (and liabilities) of both parties?[1] Lacking the wisdom of Solomon when faced with determining which of two women was the true mother of the child (1 Kings 3:16-28), courts have struggled to answer this question for years, often yielding inconsistent results. Recognizing this uncertainty and seeking to provide judges with a uniform standard for deciding which party should be awarded possession of a companion animal, Senator James Skoufis and Assemblymember Deborah Glick introduced S.4248/A.5775 in the 2021 legislative session. The bill was passed by both houses of the Legislature but, as of this writing, has not been delivered to the governor, and there is no indication when it will be delivered to Governor Hochul for her signature or veto before the end of the year.
A statutory standard for deciding possession of a couple’s jointly owned animal is desirable because it will assist judges faced with the issue and simplify their decision-making process by creating a uniform standard for this determination, but the bill in its current form is imperfect. Its language, “best interest of such [companion] animal,” is not workable when the subject of the custody dispute is an animal, and moreover, it does not promote judicial efficiency.[2] The bill’s inclusion of this proposed standard is unfortunate because courts already have fashioned a standard, “the best for all concerned,” which the bill’s sponsors could have used. For these reasons, the Committee on Animals and the Law submitted a memorandum to the governor supporting the bill and supporting the establishment of a single statutory standard but urging the governor to sign it on the condition that the sponsors agree to introduce a chapter amendment during the 2022 legislative session to modify the language of the bill, replacing “best interest of the animal” with the developing, judicially created “best for all concerned” standard.[3]
Most parties to an action involving animals would agree that companion animals cannot be treated and valued in the same manner as other material assets and that strict rules of property law should not apply to them. Many judges have concurred, as did Judge Seymour Friedman in the frequently quoted case, Corso v. Crawford Dog and Cat Hospital, Inc.,[4] who stated, “a pet is not just a thing but occupies a special place somewhere in between a person and a piece of property.” This sentiment is reflected in New York State statutes promoting animal welfare, regulating how animals must be treated, and criminalizing cruelty to animals. For example, Agriculture and Markets Law §§ 353 and 353-a prohibit cruelty to animals, § 355 prohibits abandoning an animal in your care, § 353-b mandates that dogs left outside have access to weather-appropriate shelter and Family Court Act § 842(i) allows courts to include companion animals in orders of protection. No similar laws require people to care for their personal belongings in a particular way or prevent their destruction.
While some courts have expressly recognized that animals are not merely inanimate personal property and refused to treat them as such,[5] it is axiomatic that animals also have not been granted the same rights and protections accorded to humans under the law. Thus, neither rules for the equitable disposition of material assets nor rules pertaining to the custody of children are appropriate for, or even useful to, courts in making animal custody determinations. A logical and inescapable corollary is that a standard equivalent to the “best interest of the child,” applicable in child custody determinations, should not be employed in making companion animal custody awards[6] for a variety of reasons. They are set forth by the Committee on Animals and at the Law in its Memorandum of Support to the governor referenced supra and discussed below.
Initially, this standard is unsatisfactory because it requires a subjective analysis of a companion animal’s “best interest,” an idea that is problematic at best. In Travis v. Murray,[7] Justice Matthew Cooper rejected the idea that a “best interest of the animal” standard should be applied, stating, “[h]owever strong the emotional attachments between pets and humans, courts simply cannot evaluate the best interests of an animal.” Justice Cooper elaborated:
[I]t is impossible to truly determine what is in a dog’s best interests. . . [T]here is no proven or practical means of gauging a dog’s happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interests analysis in child custody – particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations – are, for the most part, unascertainable when the subject is an animal rather than a human.[8]
Secondly, because there already exist well-known procedures to decide the best interests of a child,[9] the temptation may be to employ at least some of those to ascertain the “best interest of a companion animal.” For instance, a truncated forensic analysis could include interviews with veterinarians, pet sitters, family members and other people having significant contact with the companion animal and the parties in the custody dispute. Or one could argue for the appointment of a guardian of the companion animal to represent the animal’s best interests, equivalent to a guardian ad litem in child custody cases. This approach would be ill advised because it would involve huge expenditures of judicial resources and the financial resources of the parties, the prospect of which has been soundly judicially rejected as “unthinkable.”[10]
Thus, courts that have rejected the subjective “best interest of the animal” analysis also refused to apply a straight property law standard[11] and have fashioned an approach that allows for the objective analysis of the “best interest of all concerned,” i.e., the people and the companion animal. The first case to use such a standard was Raymond v. Lachman in which the Appellate Division reversed a lower court’s apparently strict application of property principles, and holding:
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 (emphasis added).[12]
Unfortunately, that decision contained little guidance concerning factors to be considered in evaluating the best for all concerned.
However, a more recent trial court decision, Travis v. Murray,[13] contains a thorough and well-reasoned discussion of the best for all concerned standard. Justice Cooper began by observing that the “‘de-chattelization’ of household pets” in Raymond v. Lachman[14] “[wa]s a clear statement that the concept of a household pet like Lovey being mere property is outmoded,” and that Raymond v. Lachman laid the groundwork for “employ[ing] a new perspective for determining possession and ownership of a pet, one that differs radically from the traditional property analysis.”[15]
The court continued, “[t]he factors touched upon in the decision include the concern for Lovey’s well-being as an elderly cat and the special relationship that existed between him and the person with whom he was living, a relationship that was described, rather nicely, as one where Lovey was ‘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.”[16]
Similarly, Justice Cooper stated that he would include typical property-related ownership concepts, such as the source of the funds used to purchase the dog or whether the dog was received as a gift, as only one factor in determining who would receive the dog, and he ordered that the parties have a “full hearing”[17] to enable the court to hear evidence about “what is the best for all concerned.”[18] With respect to the evidence to be submitted, he specified:
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?[19]
Justice Cooper concluded his decision with the observation that “the types of disputes seen here will only increase in frequency, and given the ‘limited ability of courts to resolve such cases,’ (quoting Raymond v. Lachman), and the “hope that the analysis engaged in here, including the survey of cases from both New York and other states, will help other courts more successfully deal with the conflict that ensues when a couple separates, a marriage ends, and a Joey, an Otis, a Bubkus, or a Lovey is left in the wake.”[20]
Unfortunately, fairly shortly after his decision, it became clear that his goal of “help[ing] other courts [to] more successfully deal with the conflict that ensures when . . . a marriage ends [leaving a family pet] in its wake” was too lofty. In 2015, two New York County Supreme Court justices (the same county where Justice Cooper sits) flatly rejected it and refused to follow it, one in a published decision, Gellenbeck v. Whitton,[21] and another in an unpublished decision discussed in Gellenbeck.
In Gellenbeck, the court was asked to reconsider its prior decision which had relied upon Travis v. Murray and had used the “best for all concerned” standard. The motion to reargue cited a recently decided, but unreported, decision also from New York County Supreme Court, Szubski v. Conrad,[22] in which the court reportedly rejected the “best for all concerned” standard based upon the difficulty in determining what is best for animals and applied property law.[23] The Gellenbeck court did its own analysis of the “best for all concerned” standard and also rejected it, because it would require determining what is best for the subject animal which it found to be impossible because animals cannot speak and do not have rights of their own to even be heard by a court.[24] Thus, the court held, “Stevie [the subject dog] . . . does not have the right to have a court of law predicate a decision, in whole or even in part, on what is best for her. Accordingly, this court simply erred in declaring that a ‘best of all concerned’ standard would and should be applied . . . The correct law is the law of property, and this Court will determine and award possession of Stevie according to that law.”[25]
As can be seen from the discussion above, although there has been a judicially created “best for all concerned” standard that some courts apply, other courts have pointedly refused to do so. Thus, a uniform, statutory standard is needed and should be created to assist courts in deciding which party in a matrimonial action should be granted custody of the family pet. This bill, S.4248/A.5775, passed by the Legislature and modified to incorporate a “best for all concerned” standard, enacts a reasonable and consistent standard which acknowledges the unique nature of animals as property that courts should use when this issue arises. This standard will help to save judicial resources and also will provide litigants with a known standard that will take into account their pets’ status as living beings, which can “love and be[ ] loved,”[26] and will offer them the prospect of more predictable results.
Stacey Tranchina is an attorney in private practice on Long Island. She works with the Law Offices of Donald T. Rave in the area of insurance and reinsurance litigation. Her areas of personal interest include animal law, special education, and matters relating to intellectually/developmentally disabled adults. Ms. Tranchina chairs the Legislation Subcommittee of the NYSBA Committee on Animals and the Law. This article was written with the input of members of that subcommittee.
[1] The exact same question arises when non-marital relationships end, leaving the fate of jointly acquired pets to be resolved by courts as well. The only difference is that if the parties are not married, they must seek possession of the companion animal by bringing an action for replevin, as judges have observed. Travis v. Murray, 42 Misc.2d 447, 452 (Sup. Ct., N.Y. Co. 2013) (“Replevin is the means by which non-matrimonial actions regarding ownership and possession of dogs have generally come before New York courts.”) For this reason, often in replevin actions, judges look to and rely upon cases decided under the Domestic Relations Law because the issues presented are identical, and there has been a parallel development of case law in both replevin actions and equitable distribution actions.
[2] In fact, the Family Law Section has recently taken this exact position in its article “Best Interests of the Hamster? A False Equivalency and Absurdity in Proposed Pet Custody Legislation” by Lee Rosenberg (Latest News 8/25/2021). However, the Committee on Animals and the Law disagrees with that article’s premise that legislation is not needed in this area because courts already have fashioned a “best for all concerned” standard. As explained herein, while such a standard has been judicially created, which is a positive development, it has not been followed uniformly and actually has been rejected, even by trial courts in the same jurisdiction. Thus, while it may be helpful to judges who choose to apply it and the pets that benefit from such application, in actuality the “best for all concerned” standard is not a well-entrenched, uniform standard applied consistently in this area of law. The Committee on Animals and the Law is strongly of the conviction that such uniformity, which will be created by a statute (or a decision of the Court of Appeals), is needed in this area: (1) To facilitate and simplify judges’ decision-making process thereby preserving judicial resources; (2) To preserve litigants’ financial resources by giving them a uniform and known standard that will govern their dispute; and (3) To ensure that the fate of animals at the heart of custody disputes will be determined by a sound and predictable standard which is appropriate for use in matters involving family pets and treating them as the sentient and well-loved beings, albeit property, that they are.
[3] This memorandum can be found on the Government Relations portion of the NYSBA’s website, https://nysba.org/2021-and-2022-legislative-memoranda, in the section devoted to the Committee for Animals and the Law, where it is identified as Memorandum #16.
[4] 99 Misc.2d 530, 531 (Civ. Ct., City of N.Y., Queens Co. 1979).
[5] Courts have increasingly refused to apply basic principles of property law to companion animals in cases involving a variety of areas of law. They include: domestic relations law, Travis v. Murray, 42 Misc.2d 447, 456 (Sup. Ct., N.Y. Co. 2013) (“[I]t can be concluded that in a case such as this, where two spouses are battling over a dog they once possessed and raised together, a strict property analysis is neither desirable nor appropriate.”); tort law, Corso v. Crawford Dog and Cat Hospital, Inc., 99 Misc.2d 530, (Civ. Ct., City of N.Y., Queens Co. 1979) (damages awarded beyond market value of the dog when the body of plaintiff’s dog was not returned in its casket but was replaced with the body of a cat); contract law, Hennet v. Allan, 43 Misc.3d 542 (Sup. Ct., Albany Co. 2014) (recognizing “a more recent trend . . . to treat companion dogs as more than just property,” and holding that a release which referred to “personal property” did not extend to parties’ dog); and even in the context of property law in replevin cases, Feger v. Warwick Animal Shelter, 59 A.D.3d 68 (2d Dep’t 2008) (discovery dispute arising out of action against animal shelter seeking to recover a cat that allegedly was stolen by an employee of the animal shelter, which ultimately arranged for her adoption to another family, recognizing that companion animals are a “special category of property [which] is consistent with the laws of the state and the underlying policy inherent in these laws to protect the welfare of animals.”); Finn v. Anderson, 64 Misc.2d 273, 278 (City Court, N.Y., Chautauqua Co. 2019) (“While it appears that the Appellate Division, Fourth Department, has not addressed the issue, this Court concludes that it is time to declare that a pet should no longer be considered ‘personal property’ like a table or car.”); Stoddard v. VanZandt, 40 Misc.3d 1213(A) (Sup. Ct., Rensselaer Co. 2013) (“It is commonly accepted that animals are not personal property as defined by New York Personal Property Law Section 1. In fact, cats fall into the category of companion animals which entitles them to special protections under New York Law.”).
[6] As set forth above, the Committee on Animals and the Law agrees with the Family Law Section, which has recently taken this exact position in its article “Best Interests of the Hamster? A False Equivalency and Absurdity in Proposed Pet Custody Legislation,” by Lee Rosenberg (Latest News 8/25/2021).
[7] 42 Misc.2d 447, 457 (Sup. Ct. N.Y. Co. 2013).
[8] Id., at 460, 631, quoted most recently in Finn v. Anderson, 64 Misc.2d 273, 276 (City Court, N.Y., Chautauqua Co. 2019) (a replevin action involving a cat).
[9] Such procedures may include ordering a forensic analysis, pursuant to Family Court Act § 251, of the child’s past and current situation, including conversations with the child and other people involved in the child’s care, or appointing a guardian ad litem to represent the best interest of the child pursuant to § 249 of the Family Court Act.
[10] Travis v. Murray, 42 Misc.2d 447, 459 (Sup. Ct., N.Y. Co. 2013) (“Obviously the wholesale application of the practices and principles associated with child custody cases to dog cases is unworkable and unwarranted.”).
[11] Some courts have continued to apply a pure property law analysis, such as C.R.S. v. T.K.S., 192 Misc.2d 547, 549 (Sup. Ct., N.Y. Co. 2002), in which the dog, which was marital property, was treated purely as chattel, subject to the rules for equitable distribution under D.R.L. § 234, allowing the court to award possession of every kind or property.
[12] 264 A.D.2d 340 (1st Dep’t 1999).
[13] 42 Misc.2d 447, 456 (Sup. Ct., N.Y. Co. 2013).
[14] 264 A.D.2d at 340.
[15] Travis, 42 Misc.2d at 455.
[16] Id.
[17] Justice Cooper stated, “If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet.” Nevertheless, he limited the time and judicial resources to be set aside for the hearing and advised that “full does not mean extended; the hearing shall not exceed one day.” He also limited the resources that would be required to implement his decision, stating, “[T]he award of possession [following the one day hearing] will be unqualified. This means that whichever spouse is awarded Joey will have sole possession of him to the complete exclusion of the other. Although regrettably a harsh and seemingly unfeeling outcome, it is the only one that makes sense. As has been stated, our judicial system cannot extend to dog owners the same time and resources that parents are entitled to in child custody proceedings. The extension of an award of possession of a dog to include visitation or joint custody – components of child custody designed to keep both parents firmly involved in the child’s life – would only serve as an invitation for endless post-divorce litigation, keeping the parties needlessly tied to one another and to the court.” Id. at 460.
[18] Id. at 460.
[19] Id.
[20] Id. at 461, 632.
[21] 2015 WL 6607458 (Sup. Ct., N.Y. Co. Oct. 26, 2015) (Engroron, J.).
[22] Index No. 151930/15 (July 13, 2015).
[23] Gellenbeck, 2015 WL 6607458 at 1.
[24] Id. at 1.
[25] Id. at 2.
[26] Raymond v. Lachman, 264 A.D.2d 340, 340 (1st Dep’t 1999).
