Our pets are like members of the family. I am often confronted by clients who are deeply concerned about which spouse will keep the dog in the event of a divorce.
So, who gets custody of the dog?
NEW JERSEY TREATS PETS AS PROPERTY WITH SPECIAL EMOTIONAL VALUE
While it’s not accurate to talk about pet “custody” (at least in the same way as parents are awarded custody of children), New Jersey Courts nevertheless recognize that pets are not the same as other items of property like cutlery, cars, or retirement accounts. Essentially, pets are recognized as a unusual variety of personal property to which owners have special emotional attachment. Consistent with American culture at large, the value assigned by the Courts to that special emotional attachment seems to grow each year. Nevertheless, New Jersey has not gone quite as far as some other states.
In the 1998 Appellate Division case of Hyland v. Borras, the Court addressed a claim that was filed because the defendant’s dog had entered plaintiff’s yard and seriously injured the plaintiff’s dog. As compensation, the Trial Court held that that a new dog would cost approximately $500 and awarded another $2,000 as reimbursement for veterinary treatments. The defendant appealed, but the Appellate Division affirmed the Trial Court’s decision, reasoning that “a household pet is not like other fungible or disposable property, intended solely to be used and replaced after it has outlived its usefulness.”
More recently, in the 2009 Appellate Division Case of Houseman v. Dare, the plaintiff filed suit against the defendant for enforcement of an alleged oral agreement whereby she would keep the dog if they broke up. The Trial Court denied her request and instead awarded $1,500 in damages as the intrinsic value of the dog. The Appellate Division, however, reversed that decision because pets have a “special ‘subjective value’ to their owners.” The Court analogized pets to “heirlooms, family treasures and works of art that induce a strong sentimental attachment[,]” and therefore, agreements between cohabitants about the disposition of a companion animal may be enforced when appropriate. Notably, on remand from the Appellate Division, the Trial Court “concluded that the parties did not have an oral agreement and entered an order requiring the joint owners to each have sole possession of the property at specified times during the calendar year.” In 2010, the plaintiff attempted a second appeal, but the Trial Court’s final decision was summarily affirmed.
Thus, New Jersey Courts are required to consider the special emotional attachment between pets and pet owners, but they are not required to consider the well-being of the animal. Even so, Courts are not forbidden from considering the well-being of the animal, and a smart litigator will be sure to address that issue when trying cases in New Jersey over pet ownership post-divorce.
OTHER STATES GO FARTHER AND CONSIDER THE ANIMAL’S WELL-BEING
Other states have gone farther than New Jersey in recognizing the deep emotional attachment we have to our pets. For example, in 2017, Alaska adopted a law that requires Courts to consider the well-being of the animal in divorce proceedings. Under that new law, the Court can award joint custody of an animal and can include animals as protected parties when issuing domestic violence restraining orders.
In 2018, Illinois took a similar approach in enacting a law that permits sole or joint custody of a pet and requires such awards to consider the animal’s well-being. Both laws are comparable to the “best interests of the child” standard applied in child custody cases.
Effective January 1, 2019, California enacted a somewhat weaker version of the laws in Alaska and Illinois. Specifically, Courts in California can award sole or shared custody of a pet, but they are “authorized” (rather than required) to consider the “care” (rather than the well-being or best interests) of the animal in deciding the issue.
Given the trend in American culture toward recognizing pets as full-fledged members of our families, I anticipate that more states will soon follow suit.
CONCLUSION
If you are considering or going through a divorce, I strongly recommend retaining a strategic and aggressive attorney to represent you. As the managing attorney of Shaw Divorce & Family Law LLC, I would be happy to sit down with you free of charge to explore the facts, explain the law, and address the likely timeline, costs, and range of possible outcomes. To schedule a free consultation, click here.
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