Man’s Best Friend

taken from

Recent studies reveal that more than seventy percent of pet owners consider their pet to be family members.[1] They are not owners of property, but relatives or a friend. Therefore, when it comes time to splitting up a family, what does one do with the loyal dog or cat?

The New York Legislature passed a pet trust statute in 1996 permitting persons to create enforceable trusts for the care of domestic or pet animals in N.Y. Est. Powers & Trusts Law § 7-8.1. It provides that all monies left may be used for continued animal care and may be enforced by an individual designated in a trust instrument or, if none, by an individual appointed by a court upon application to it by an individual, or by a trustee. However there are no provisions in the New York custody statutes of the domestic relations law that involve pet ownership upon divorce.

The law in New York considers pets as “property.” Therefore, many courts treats a pet as an “asset” and depending on the facts and circumstances of the case, have awarded it to one party or the other. Designating animals as personal property allows judges to enforce contracts about pets as they would any other contract. Prior to marriage, a couple can easily provide for any future disposition of their pets in a prenuptial agreement (whereas they cannot with children).

However, In Raymond v. Lachmann, 695 N.Y.S. 2d 308 (N.Y. App. Div. 1999) the court recognized the “cherished status” pets have in our society, and awarding possession of a cat in a custody dispute based in large part on what was in the best interest of the animal. The most important factors considered by the court in pet custody decisions are the quality of the preexisting relationship between the pet and each of the disputing parties, an examination of which party is the primary caretaker, and the stability of the home environment.

But the court still used property language in awarding “possession” and barely considering a visitation schedule for the pet. Dissension between who will be the sole owner can be very distressing to pets. When there is discord in the home, pets may experience loss of appetite, irritability, and nervousness.  Pets can also have more “accidents” in the house or excessively chew on furniture and damage other household objects. [2]

The greatest obstacle facing advocates of a “best interests of the animal” standard is that animals have no legal standing in a court of law. Until the definition of legal personality is revised to include animals, advocates will have a difficult time convincing judiciaries to consider the interests of pets in divorce actions, as well as the rights of the legal personalities who own them. Providing courts with a statutory basis for considering the welfare of pets would solidify the importance of companion animals in the home.

[1] See William C. Root, Man’s Best Friend: Property or Family Member? An examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for their Wrongful Death or Injury, 47 Vill. L. Rev. 423 (2002) (footnotes omitted).

[2] Dru Wilson, Divorce Cases Going to the Dogs, The State, Jan. 9, 2002, at D1, available at 2002 WLNR 1756584