When a husband and wife divorce and they share a beloved pet, how should custody of their dog or cat be decided? With approximately half of all marriages ending in divorce it is interesting to note that there are not many published decisions in New York determining who gets Rover or Felix. Perhaps this is because clients realize the expense involved in litigation and resolve the issue themselves or maybe it is because their attorneys discourage litigation over pets.
Maybe some pet issues resolve themselves because if there are children involved the pet(s) will usually go with the residential custodial parent. But what if there are no children? Should the pet go to the party that is the primary caretaker or the person who paid for the pet or the person who is most attached to the pet? Should the pet live with the person who will keep the house or who will have the larger residence? Should the pet be with the person who has the most free time to play with the pet?
Recently I had a client tell me that although they do not have children they are "doggie parents". The client suggested that the spouse is very attached to their dog and maybe that could be used as "leverage". Having learned years ago not to be too judgmental I said nothing because the issue will eventually resolve itself since it is clear the client is willing to forgo custody.
Should a judge hold a hearing to determine what is in the best interests of the pet? Should there be an independent evaluation to see which spouse is the pet most attached to? Should the judge award visitation of the pet if the couple cannot get along? I suggest probably not and in over 30 years of practicing law I have yet to have handled a serious pet custody dispute.