MORE ON THE DEVELOPING PET CUSTODY LAW

Acosta v. Shaw, Date filed: 2022-12-16, Court: Supreme Court, Queens, Judge: Justice Lourdes M. Ventura, Case Number: 717310/2020:

"“Replevin is strictly a possessory action and plaintiff, to recover, must show a possessory right recognized by law” (Hofferman v. Simmons, 290 NY 449, 455 [1943]). However, when dealing with animals. Specifically, the Second Department, Appellate Division in Feger v. Warwick Animal Shelter, 59 AD3d 68, 72 [2d Dept 2008] recognized companion animals as a special category of property which consistent with the laws of this State and the underlying policy inherent in those laws to protect the welfare of animals. The court in Feger further acknowledged the “cherished status” accorded to pets in our society in awarding possession of a cat in a custody dispute based in large part on what was in the best interest of the animal (Raymond v. Lachmann, 264 AD2d 340, 341 [1999]).

An applicable standard dealing with pet custody cases was further developed in a matrimonial action under Travis v. Murray (42 Misc 3d 447 [Sup Ct, New York County 2013]). The Travis court concluded that in determining to whom a pet should be awarded, a “best for all concerned,” rather than a “best interests,” standard would be appropriate. This standard was subsequently adopted and applied by several courts in non-matrimonial actions dealing with causes of actions of replevin and right of possession (see, e.g. Mundo v. Weatherson, 74 Misc 3d 1215(A) [Civ Ct 2022] Mitchell v. Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v. Askins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v. Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014])).
Since the Travis decision, Domestic Relation Law (“DRL”) §236 [B] [5] [d] [15]) was enacted requiring courts to consider “the best interest” of such animal when awarding possession in divorce or separation proceedings (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]).

While this court is aware that this action seeks causes of actions grounded in replevin and right of possession, which is distinguishable from divorce and separation proceedings, this Court would be remiss if it did not acknowledge that a determination regarding the custody of a pet, whether between two married persons or two previously co-habiting persons, should inherently consider the best interest of said animal as a factor to be consider during the court’s determination (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]). Thus, this court will apply the “best for all concerned” standard (see, e.g. Mundo v. Weatherson, 74 Misc 3d 1215(A) [Civ Ct 2022] Mitchell v. Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v. Askins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v. Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014] and consider the “best interest” as a factor to be consider in the overall analysis (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]).

Based upon the credible testimony of the parties, it is undisputed that defendant Shaw paid for Waffles and it is clear that the monthly expenses were shared between the parties during their time living together. Plaintiff credibly acknowledged that when the three of them resided together they shared the walking responsibilities for Waffles anywhere from two to four times a day. This Court finds that both parties credibly testified about their love and devotion for Waffles, and both genuinely expressed an interest in doing what was in Waffles best interest. It is undisputed that since August 2020 Waffles has resided with defendant Shaw. Moreover, no evidence was adduced to controvert defendant Shaw’s account of Waffles current daily routine or care. Under Waffles’ current care, Waffles resides on a first floor of a duplex style house which has direct access to a backyard, has daily companionship with defendant Shaw, his live-in roommates and another dog named Savi.

Based upon the totality of the evidence, and the testimony adduced during the hearing, this Court finds that in considering the best interest of Waffles, and the best interest for all concerned, that Waffles remain with defendant Shaw."