(Note: This is an edited excerpt from an article written by Emerald E. Sheay and Marisa Lepore Hovanec in the January 2023 edition of New Jersey Family Lawyer. NJSBA Family Law Section members can read the full article and edition here.)
In 2018, the divorce of Jennifer Aniston and Justin Theroux made headlines when they allegedly agreed to a “shared custody” schedule of their marital dogs. It is no surprise to pet owners that dogs often feel like a member of the family during a breakup. With an increase in dog adoptions, the simultaneous increase in disputes over dogs in breakups and divorces is a reality seen by family attorneys across the country.
Pet ownership boomed during the pandemic, with recent estimates suggesting that over 23 million American households adopted a pet since March 2020. The role of animals in the law is changing as well. As just one example, a pending bill in the New Jersey Legislature would allow lawyers to advocate on behalf of pets in cruelty cases. As the role of pets in the family continues to expand in importance, so does litigation over their ownership.
How are Pet Custody Disputes Decided?
Under New Jersey law, as in all 50 states, domestic companion animals are classified as property. As such, custody disputes over pets are still typically regarded as disputes over ownership of chattel. However, existing case law, such as the case of Houseman v. Dare, does recognize that pets have a “special subjective value” beyond that of typical property. Houseman involved an argument between former fiancés over which of them should receive possession of the dog they acquired during their relationship. The decision is a landmark case for pet custody disputes in New Jersey and offers guidance into how such a dispute should be resolved.
At the outset, the Appellate Division in Houseman rejected the use of a “best interests” test to decide who should get ownership of the dog. In many ways this is unsurprising, as such a test could be difficult for the court to apply, may warrant experts, and could make these disputes very time-consuming to manage. Nonetheless, a best interests test for pet custody disputes has been adopted in New York. As of October 2021, the court in New York must consider the best interests of the companion animal as the standard for awarding possession in a dispute. However, the relevant statute does not define what the best interest of the animal is or what factors should be used in the analysis.
Unlike the New York courts, the Appellate Division in Houseman held that the judge should examine whether the assertion to the pet is sincere, as opposed to “greed, ill-will, or other sentiment or motive similarly unworthy of protection in a court of equity.” Further, New Jersey courts are directed to consider whether there is an oral agreement as to the possession of the pet, and if so, if specific performance of the agreement’s terms is appropriate. As an additional note of relevant case law, the Supreme Court of New Jersey has also denied any right of pet owners to recover emotional distress damages arising from the loss of their pets. Such an argument from one side or the other in a pet custody dispute would therefore be unfounded.
In the eyes of a jurist, a dispute over a companion animal likely still comes down to pure property ownership, with the purported owner providing proof of purchase receipts, veterinary records, and other evidence demonstrating ownership. But, in the case of a pet acquired during a relationship, assertions can be made by either side that an oral agreement was in place to permanently share the animal. Further, if that is the case, the court has the power to enforce a “shared custody” schedule of the pet if the circumstances allow.
Of course, the parties to a pet custody dispute always have the power to discuss and agree on the best outcome for their pet outside of the court system. To that end, a growing number of mediators specialize in companion animal disputes. Unlike in court, an agreement between the litigants themselves can consider the best interests of the animal. The agreement should be comprehensive in its terms. Some common terms to include in a pet custody agreement are the time-sharing schedule, vacation time, sharing of expenses, a procedure for making medical decisions, rights of first refusal, and many other provisions which might also appear in child custody agreements. If the litigants are able to continue an amicable relationship, such an agreement may very well be in the best interests of all involved (“Fido” included).
In sum, custody disputes over animals are challenging, and some may consider the prevailing law on the issue to be non-reflective of the important role pets play in our families and everyday lives. For example, based on the current state of the law many jurists will be unwilling to “split the baby” by ordering a shared-custody schedule, and will instead feel compelled to decide on all-or-nothing possession. However, it is becoming increasingly common for shared pet arrangements to make their way into marital settlement agreements and independent agreements between separating couples. Accepting creative, nontraditional solutions when it comes to disputes over companion animals will serve clients, and their beloved pets, well.