The Dog Days of Divorce - Who Gets Custody of the Canine?

- An Edited Excerpt of a Masterful Court Decision by Judge Matthew Cooper in Travis v. Murray, November 29, 2013, NYS Supreme Court, New York County

People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry. All too often, onetime happy spouses end up as decidedly unhappy litigants in divorce proceedings. And when those litigants own a dog, matrimonial judges are called upon more and more to decide what happens to the pet that each of the parties still loves and each of them still wants. This case concerns one such dog, a two and a half year-old miniature dachshund named Joey.

Joey finds himself in a tug-of-war between two spouses in the midst of a

divorce proceeding to end
their extremely short and
childless marriage. In fact,
the only issue in this case is
what will become of the
parties' beloved pet. Plaintiff, alleges that the Defendant, wrongfully took Joey at the time the couple separated. Consequently, she seeks an order requiring Defendant to return Joey to her and sole residential custody of the dog.

On February 6, 2011, while the parties were living together, but before they married, Plaintiff bought Joey from a pet store. Plaintiff and Defendant were then married on October 12, 2012. Then on June 11, 2013, Defendant moved out of the marital apartment and took Joey with her. Next, Plaintiff filed for divorce on July 11, 2013.

Can there be such a thing as “custody” of a canine ?

Plaintiff argues that Joey is her property because she bought him with her own funds prior to the marriage. She alleges that Defendant, in effect, stole the dog when she removed him from the marital apartment. Moreover, asserting that she “was the one who cared for and financially supported Joey on a primary basis,” Plaintiff contends that it is in Joey's “best interests” that he be returned to her “sole care and custody.”

Defendant opposes, stating that Joey was a gift to her from Plaintiff as a consolation for her having to give away her cat at Plaintiff's insistence. Defendant further contends that she shared financial responsibility for the dog, that she “attended to all of Joey's

emotional, practical, and logistical needs”. Finally, Defendant submits that it is in Joey's “best interests” not to be with Plaintiff.

How to Determine Who Gets Joey - Property Analysis or
Best Interests of the Dog ?

Both sides in this case use two different approaches in determining which one should be awarded Joey. The first approach is the traditional property analysis based upon ownership. The second theory is the custody analysis, with each side calling into play such concepts as nurturing, emotional needs, happiness and, above all, best interests - concepts that are firmly rooted in child custody analyses.

It 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. Although Joey the miniature dachshund is not a human being and cannot be treated as such, he is decidedly more than a piece of property, marital or otherwise.

But if not a strict property analysis, what should be the process by which Joey's fate is decided and what standard should be applied in making that determination? Should the court adopt a custody analysis similar to that used for child custody? And if so, is the well-established standard of “best interests of the child” to be replaced by that of “best interests of the canine?”

Child custody battles are difficult, painful and emotionally wrenching experiences for all concerned. They present some of the knottiest and most disturbing problems that our courts are called upon to resolve. A determination in a custody proceeding must be guided by the overriding and well established standard of the child's best interests. A court needs a tremendous amount of information upon which to make a best interests finding. This almost always necessitates the appointment of an attorney for the children ; the appointment of a forensic psychiatrist or psychologist to evaluate the children and the parties as well as to conduct collateral interviews with teachers, child care providers, pediatricians and the

like; the taking of extended testimony, both from lay and expert witnesses ; and the court hearing from the children.

Obviously, the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. It is impossible to truly determine what is in a dog's best interests. There 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.

Even if there were a method to readily ascertain in some meaningful manner how a dog feels, and even if a finding could be made with regard to a dog's best interests, it is highly questionable whether significant resources should be expended and substantial time spent on such endeavors. It is no secret that our courts are overwhelmed with child custody cases, cases in which the happiness and welfare of our most precious commodity, children, are at stake. To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable. This does not mean, however, that cases like this one, in which it appears that each spouse views the dog as a family member and sincerely believes that he would be better off in her care, should be given short shrift. After all, matrimonial judges spend countless hours on other disputes that do not rise to a level of importance anywhere near that of children. 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.

A New Legal Standard is Bred - Best for All Those Concerned

The parties here will be given a one day hearing. The standard to be applied will be what is “best for all concerned”. 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 the Victor Goes the Spoils

The one day hearing to determine who gets Joey will be the final proceeding on this issue. The award of possession 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.

Stay tuned to learn about Joey’s fate. 

About Steven Gildin

A Compassionate, Aggressive Lawyer in New York City.

Steven Gildin has been a practicing attorney in New York for over seventeen years, during which he has handled a tremendous volume of cases. Although amassing vast experience in nearly all areas of the law, Steven has had a particular emphasis on Domestic Relations law and Criminal Defense matters. In fact, Steven has aided thousands of people in becoming divorced and defended hundreds of people facing diverse criminal issues.

Many of the cases Steven has handled have garnered much media attention on both the National and Local levels. Steven’s cases have been featured on The Today Show, CNN, MSNBC, New Yorker Magazine, New York Times, Post, Daily News, Newsday, New York Law Journal and throughout the New York Television and Radio News.

Steven is also an accomplished author, having been published several times in a national magazine on both legal and non-legal matters.

Steven’s current practice services the Greater New York City Metropolitan area. He handles a wide area of general litigation cases including divorce, family court, criminal defense, education law, personal injury and estate matters.