When a couple with children gets a divorce, a custody battle over the kids is expected. But what happens when a duo’s split leaves a pet in the middle?
While New York lawyers say it’s unlikely battles over pet custody will ever routinely rival the intensity of battles over child custody — and still typically do not come close — who gets the dog or cat in a divorce is becoming a question that’s asked more frequently than ever, especially as couples opt to adopt over having a child.
When a splitting couple with children reaches a joint custody agreement for their kids, the divorcees sometimes agree the pet should “follow” the child, settling the matter as secondary. But as more couples choose to be child-free, they see their animals the same way others see a child.
“You really see these disputes in cases where there are no children,” said Kelly Frawley, an attorney who specializes in family and matrimonial law as a partner at Sterlington PLLC. “It’s because that couple has treated the animal in a very different way than people with human children treat their pets [in divorce proceedings].”
A New York law passed in 2021 shifted the legal standard for how pets should be considered in divorce proceedings. No longer are pets considered “property,” like a couch or piece of art: The court must consider “the best interests” of the pet themselves when making decisions over who takes the furry friend with them when leaving — a portion of the same standard applied to kids.
“[Courts] weigh the involvement or absence of a party in the animal’s day-to-day life, the availability and willingness of each party to care for the companion animal, the party’s involvement in veterinary and health issues for the companion animal, quality of the home environment and care and affection that’s shown towards the companion animal,” Frawley said. “And, generally, each party’s fitness and caretaker ability.”
Kelly Frawley, partner in the matrimonial and family law practice at Sterlington PLLC, a law firm with a focus on advising ultra-high-net-worth individuals.Provided by Kelly Frawley
However, Frawley emphasized that nothing will ever take priority over what’s best for a child in divorce proceedings.
She said courts in New York are essentially making decisions about who gets the pet as a sort of “hybrid” between awarding someone “possession” of an object and considering the “best interest” of the animal.
“It doesn’t fall squarely in one or the other,” Frawley said. “While there is a similarity between the factors that the court considers for a pet and a kid, they’re not the same, and they’re by no means going to be treated the same. It’s by no means the same best interest analysis that we see for children.”
That all means that how attorneys and judges consider when deciding who gets the dog tends to come down to who seems to care the most about the pet – and who can prove they know how to take care of the animal via vet records and other papers.
“If you are somebody who’s interested in genuinely pursuing being a primary caretaker for the companion animal, I think you should have a handle on the dog’s health, how the vet visits go, and being present at the vet visits,” Frawley said. “Understanding if your dog has an allergy, and knowing what precautions need to be taken at the vet, if any, when you bring your animal in matters. What your ability to care for the animal is and what the home environment is matters.”
How pet custody battles in New York have changed in five years
What’s happened since the law’s passed? While a judge hasn’t yet issued a joint custody decision for a pet, judges have certainly ruled that one person or the other should keep the animal> A judge has also ruled on providing an “access schedule” to the pet between parties (with one being considered the dog’s primary caretaker and the other the secondary) and has ruled that one person over the other should make veterinary decisions.
One important thing Frawley thinks the law change has resulted in is people using pets as leverage less. It’s hard to make the case that you truly believe living with you is in the pet’s best interest if it’s clear you’re only arguing over the dog or cat in the first place because you see the animal your ex-partner cares about as a bargaining chip to get more money in a settlement.
“My advice to people is to be genuine. Put the animal’s interest first. If you really think that you should be the caretaker because you have been, pursue it. If you’re using it as leverage, don’t,” she said. “Using it as leverage just undermines that you’re really looking at it from a best interest perspective.”
She thinks judges can tell when people aren’t being sincere about their desire for the pet.
“If there is a hearing on it, the court’s going to be able to see who really cares about the animal versus who maybe sort of cares about the animal, but not to the same degree as the other party,” Frawley said. “I have picked up that the courts could tell who really was attached to the dog and who really wasn’t. When it comes to a companion animal, it’s pretty easy to see what’s happening when you ask somebody about it.”
Even so, it’s still most likely that lawyers will get their clients to come to an agreement over who gets the pet according to the new legal standards outside court, Frawley said.
Frawley said the best way to handle these disputes is to try to avoid getting into them at all. If couples are considering buying or adopting a pet together, she said they should discuss — and agree in writing — about what happens to the dog in the event of a split up front.
If you are someone who knows you want to keep the pet, make sure everything — the purchase record, the vet records, official communications, etc. — is in your name from the start, especially if you are not officially married, she said.
“If I were to advise somebody who is buying a pet with somebody with whom they’re not married to, I would say have the adoption paperwork, all the paperwork in your name. Have the vet records in your name,” Frawley said. “The animal should have your last name. Have proof of payment for all the companion animals’ expenses, and also be present. That’s what’s most important. Be the one who’s there.”
“If you want to have a slam dunk case, that’s what you should do,” the attorney added. “It’s just like, you wouldn’t buy a home with somebody who you’re not married to without talking to a lawyer. You’ve got to be smart about an animal, too.”