A DOG OF DIVORCE

L.B. v C.C.B. 2022 NY Slip Op 22320 Decided on October 6, 2022 Supreme Court, Kings County Quiñones, J.:

"Companion Dogs

The sole significant asset contested by the parties is custody and possession of their two dogs €" three-year old Rottweilers named Kane and Cleo. To be sure, the issue of who gets custody of the family pet following a divorce is often "no less contentious" than that of who gets custody of the minor children (see George Heymann, The 'Humanization' of Animals and the Custody of Companion Pets When Couples Separate or Divorce, NYLJ, Mar. 22, 2022). As stated by retired Justice Matthew F. Cooper, "[p]eople may stop loving their spouse at some point, but they never stop loving their dogs" (Susan Lehmann, The New Yorker, The Bench, A Voice For The Yorkies and Doodles When Mom and Dad Split Up, https://www.newyorker.com/magazine/2021/11/22/a-voice-for-the-yorkies-and-doodles-when-mom-and-dad-split-up [Nov. 22, 2021]).

For years, courts have grappled with the proper standard to apply in pet custody matters (see e.g. Raymond v Lachmann, 264 AD2d 340 [1st Dept 1999] [courts have a "limited ability" to satisfactorily resolve pet custody disputes]; Travis v Murray, 42 Misc 3d 447, 449 [Sup Ct, [*4]NY County 2013] ["courts are left with little direction with respect to questions surrounding dog custody"). Because dogs were treated as chattel, "it [was] the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that [were] ultimately determinative" (Travis, 42 Misc 3d at 453). However, in Raymond v Lachmann, supra, the First Department, "[c]ognizant of the cherished status accorded to pets in our society [and] the strong emotions gendered by disputes of this nature," applied an in the "best for all concerned" standard in awarding custody of the family pet, a nearly 10-year-old cat named Lovey (id. at 341). In determining that Lovey should "remain where he has lived, prospered, loved and been loved for the past four years," the court considered factors such as Lovey's age, life expectancy and his physical and emotional well-being (id. at 341).

Almost 15 years later, in Travis v Murray, supra, a matrimonial trial court considered whether the court should employ a "best interests of the canine" standard in determining custody of a couple's 2½-year-old miniature dachshund named Joey (Travis, 42 Misc 3d at 456). Recognizing the treasured and valued "place [that pets] have in our hearts, minds and imaginations," the court found that "a strict property analysis [in determining a pet dispute] is neither desirable nor appropriate" (Travis, 42 Misc 3d at 451-456). After a thorough analysis of pet ownership and possession cases from across the country, the trial court ultimately directed a hearing to resolve the dispute with the applicable standard being the "best for all concerned" standard promulgated in Raymond v Lachmann, supra. The court further stated,

In accordance with that standard, 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 this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey's needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps more importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter in New York?

(Travis, 42 Misc 3d at 460). Notwithstanding its adoption of the "best for all concerned" standard, it is clear from the court's questions that that which was in the "best interest of the pet" was also considered (cf. Eschbach v Eschbach, 56 NY2d 167, 171 [1982] ["Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote its welfare and happiness' "]; Yu Chao Tan v Hong Shan Kuang, 136 AD3d 933, 934 [2d Dept 2016] [The determination of custody can only be resolved after a full hearing and careful analysis of the factors that would further the child's best interest including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent"]).

In another pet dispute case, this time involving neighbors and not domestic partners, the trial court utilized the "best for all concerned" standard in awarding the defendant possession of Sylvester/Marshmallow, a four-year-old cat that had wandered away from the defendant's home and was cared for by the plaintiff for a period of several months (Finn v Anderson, 64 Misc 3d [*5]273, 278 [City Ct, Chautauqua County 2019]). In its decision, the court, while "not persuaded that a court could not evaluate the 'best interests' of a pet," nevertheless opined that a strict best interests standard was not appropriate in pet dispute cases because unlike a child, which the court has a responsibility "to ensure is nurtured into independent adulthood," "a pet never becomes an independent being apart from the owner" (id. at 277 [emphasis added]). While a pet may never become an independent being apart from its owner, it appears that a trial court can, and in fact now must, evaluate the "best interests of a pet."

Effective October 25, 2021, New York matrimonial courts no longer have to grapple with how to decide pet custody cases. The issue of the applicable standard to apply in pet custody cases has finally been put to rest with the enactment of law which requires courts to consider "the best interest" of a companion animal when awarding possession in a divorce or separation proceeding (DRL § 236 [B] [5] [d] [15]). In its justification for the bill, the NY legislature reasoned, "For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce" (NY Committee Report, 2021 NY Senate Bill No. 4248 [Feb. 6, 2021]).

In determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal's day-to-day life; the availability and willingness of each party to care for the companion animal; each party's involvement in health and veterinary care decisions; the quality of each party's respective home environment; the care and affection shown towards the companion animal; and each party's fitness and caretaking abilities. No single factor is dispositive.

Accordingly, in determining equitable distribution of the parties' companion animals, the court will be guided by what is in Kane and Cleo's best interest. In weighing the factors relevant to Kane and Cleo's best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (see generally Eschbach, 56 NY2d at 173).

The story told at trial regarding how the parties located and welcomed Kane and Cleo into their family reflected, to this court, the level of each party's love and affection for the dogs at the outset. According to Plaintiff, he found the dogs online and the parties then drove to Pennsylvania together to pick them up (tr at 44). When asked on cross-examination how Kane and Cleo were specifically chosen, Plaintiff explained, "We were both there and whoever jumped towards us, right, are the dogs that we got on that day. But I paid for them" (tr at 44). On the other hand, Defendant shared a more vivid, reflective story of how Kane and Cleo came into their lives. She stated,

"We went together to get Kane and Cleo and we had €" we went to get Kane, let me correct you. We went to get Kane and Cleo suckered her €" she's all love, she is a big Rottweiler but she wants love and she came into my arms and that was it. So we didn't go to get Cleo, Cleo picked us, that's how she came. We went to get one Rottweiler and came back with two"
(tr at 55-56). Defendant acknowledged that Plaintiff paid for the dogs, but submitted that he got them for her because "it was hard for [her] to be alone" after the loss of their previous pet, a dog named Jake (tr at 55).

It is undisputed that during the course of the marriage, the parties shared in the caretaking duties of Kane and Cleo (tr at 36, 57). Plaintiff testified that he trained them and that he was [*6]responsible for walking and feeding them until the parties "started to fall out" (tr at 44). He nonetheless reminded this court that he "can't walk them and feed them if [the parties] are having problems in the house and [he is] not there" (id.). Notwithstanding his contention that he cannot walk and feed the dogs because he is no longer in the home, Plaintiff later claimed that since the breakdown of the parties' marriage, he "walk[s] them; feed[s] them; [has] taken them to the vet makes[s] sure that they are covered in terms of the house insurance;" and up until last year, paid for their vet bills (tr at 46).

Defendant admitted that Plaintiff helped raise and train Kane and Cleo, but asserted that she has always been the dogs' primary caretaker (tr at 56). She stated that other than the liability insurance which Plaintiff covers, she is the "sole provider" of "their daily needs, everything, their health, their food, everything" and that since last year, she has been paying for their health insurance (tr at 57).

White it is undisputed that the parties shared in the caretaking duties during the marriage, Defendant has borne almost sole responsibility for Kane's and Cleo's day-to-day care. Plaintiff is out of the house which rendered Defendant the de facto custodial caretaker during the separation. According to Defendant, Plaintiff stopped the daily care of feeding and walking the dogs "even before" he left the marital residence, and since he left in March or April of 2021 has only walked them "about three times" (tr at 56). On cross-examination, when pressed as to how Defendant could know whether Plaintiff walked the dogs when she was not home, Defendant answered, "I know how many times they poop in the morning, how many times they poop in the afternoon. I know their bowel movements. I know them and how they — I know everything about them. So if he would have walked them while I wasn't there, if he would have moved the leash while I wasn't there, I would know" (tr at 64-65).

Both parties also testified in some respect regarding maintaining the health of the dogs. Plaintiff stated that he makes sure the dogs are covered under the home insurance and has taken them to the vet. Defendant also acknowledged that a month or two before the trial, Plaintiff helped her by taking Kane to the doctor because "we have problems with shots because [Kane] is afraid of needles" (tr at 56-57). The court notes that Plaintiff's statement of net worth, sworn to on April 21, 2022, does not reflect any veterinarian/pet expenses, whereas Defendant's statement of net worth, sworn to on October 20, 2021, reflects veterinarian/pet expenses in the amount of $4,000 (Plaintiff's Exhibit 1; Defendant's Exhibit A).

With respect to his relationship with the dogs, Plaintiff, after acknowledging that he is unable to tend to the dogs' daily needs because he is not in the home, asserted that "but when I come back there is no question that they gravitate towards me" (tr at 44). When asked what should be done with the dogs, Plaintiff responded, "My intention was to let her take the Rottweilers if we resolve the case. If we don't resolve the case, then we have to talk about what that looks like" (tr at 37). When asked again whether he would be seeking custody of the dogs, Plaintiff again emphasized that if the parties resolved the case, he was "willing to part with them" (id.). When advised, "[y]ou're at trial now," Plaintiff nonchalantly responded, "[w]ell, we can split those two" (id.).

Unlike Plaintiff's response, Defendant's position on what should happen with the dogs was impassioned and heartfelt. She did not refer to the dogs as possessions or chattels, but as her "family" and "emotional support" and asserted that removing them from her would be "devastating" (tr at 57). While recognizing that "they are not sentient beings legally," she stressed that the dogs have feelings and that "their love is unconditional" (tr at 66-67). She [*7]conceded that the dogs love Plaintiff and that "they are having problems with him not being around now, particularly Cleo 'cause she's really attached to him," but that Cleo "is getting used to it, his not being in her life" (tr at 66, 70). She emphasized that dogs need consistency, "like kids" (tr at 66-67).

Here, after weighing the factors that would further Kane and Cleo's best interest, including factors such as which party is primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would "live, prosper, love and be loved," as well as evaluating the testimony, character and sincerity of the parties, the court finds that it is in Kane and Cleo's best interest to remain together in Defendant's sole care. Accordingly, care and custody of the parties' Rottweilers, Kane and Cleo, is awarded to Defendant."