Pet Custody in Divorce

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Pet Custody in Divorce

UPDATE: Who gets custody of the family pet in a divorce?

For a long time, the law was not current with how people feel about their pets today. Most pet owners consider their dogs and cats to be family, while the law considered them to be property, like cars, furniture, and other belongings.

Whether married, engaged, or dating, couples often test the compatibility of their relationships by their ability to “co-parent” a treasured family pet. What is important to remember is that, just like a future child, our pets come with emotional, psychological, and financial responsibilities that can and very well may outlive your relationship.

I’m happy to announce that as of 10/25/2021, the NYS courts now have to consider the needs of pets in a more humane way in a divorce.

NYS Assembly Bill A5775 Signed into Law by Governor Hochul

As summarized on the NYS Senate website, Bill A.5775/S.4248 “relates to requiring the best interest of a companion animal to be considered when awarding possession in a divorce.”

New York State added an equitable distribution factor to the Domestic Relations Law 236 Part B(5)(d) by adding a new sub-paragraph 15, requiring a court, when awarding possession of a companion animal, to consider the “best interests” of that animal when awarding pets to either spouse. The courts are now able to recognize the cherished status of pets in society even as they remain personal property.

A companion animal includes:

  • Dogs
  • Cats
  • Other domesticated animals living in or near the home and cared for by the owner(s)

Your Separation Agreement Is Still Your Best Tool

A 2014 survey from the American Academy of Matrimonial Lawyers (AAML) found a 27 percent increase in the number of couples who have fought over custody of a pet during the past five years.

As it is with most issues in divorce, it’s still best that you and your spouse work out custody of your pets between yourselves and document your decisions in your separation agreement.

If this issue goes to litigation, it’s not clear yet how the changes to the “best interests” standard and the equitable distribution law on pets will impact pet custody battles in New York. This new statute may involve more lawyer time, trial time, and greater judicial resources to resolve this issue in your situation.

Pet Custody Issues to Consider

You and your spouse can decide whether to pursue sole or a shared animal custody arrangement by considering the following points:

  • Who usually took on most of the responsibility for meeting the pet’s needs (i.e., feeding, walking, grooming, vet visits) when the parties lived together?
  • Who spent more time on a regular basis with the pet?
  • What arrangement is in the best interest of the pets in question?
  • Who wants custody now and how close will the parties live to one another to share custody?
  • Are children involved, and if so what is their attachment to the pets? Would it be in the best interest of the children to keep the animals in their lives? How can this be fairly accomplished?

Custody issues worked out in a parenting plan for children are a good starting point for coming to agreement about your pets:

  • Where the pets will live. If in both homes, when and how the transition will occur. How long will the pet stay with each person.
  • How veterinarian-related visits and pet medical expenses and comfort care will be handled.
  • Who is responsible for food, toys, bedding, carrying cases, “day care” or pet-sitting services while the pet is in each home.
  • Many separation agreements include the option of right of first refusal. If the primary pet owner is no longer able to care for the pet, custody will be given to the other party.
  • Separation agreements also consider a formal visitation schedule and a commitment by the secondary owner to care for the pet (rather than put it in a kennel) if the primary pet owner goes out of town.

Pets Are Family

Conflicts over a pet can be just as important to divorcing spouses as any issue when both spouses have developed a special connection to a companion pet and wish to maintain it.

As the social status of animals has changed from property to family member, divorce laws are finally expanding to consider their welfare. That said, mediation is still the best process to consider all points of view regarding where the pets will reside. This change in the law now provides a clearer legal path to handle changes in their care.

Divorce and Pet Custody Resources

Photo credit: CanStockPhoto.com

This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as legal or financial advice. Internet subscribers and online readers should not act upon this information without seeking professional counsel.


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