Courts in New York State are required in equitable distribution cases to consider the best interests of companion animals before awarding them to either party. New York State law does not provide a specific definition of “companion animals,” but the term generally refers to animals that are kept primarily for the purpose of providing companionship to their owners. Companion animals can include dogs, cats, birds, rabbits, hamsters, and other small mammals, as well as some species of reptiles and fish.
In New York State law, seeing eye dogs or guide dogs for individuals with disabilities are generally not considered to be companion animals. These dogs are considered service animals, which are animals trained to perform specific tasks for people with disabilities. Service animals are often granted legal protections under the Americans with Disabilities Act (ADA), and other laws. Service animals are not considered common property in equitable distribution cases.
In the context of New York State law, companion animals are typically afforded certain protections and rights, including under animal cruelty laws and domestic violence laws. In some cases, orders of protection in divorce cases may include provisions for the protection of companion animals, such as by requiring an abuser to stay away from the animal or prohibiting the abuser from possessing or acquiring an animal.
In relation to equitable distribution of assets in divorce proceedings, pets are generally treated as property under New York law. This means that the court will consider the value of the pet as an asset when dividing property between the spouses. Unlike other types of property however, courts have recognized the “cherished status” accorded to pets in our society. Certain pets (dogs and cats for example) are commonly regarded as beloved family members rather than mere possessions. As such, the court must consider the best interests of the entire family as well as the pet when making decisions about its custody.
New York courts have considered various factors to determine what is in the best interest of the pet (and the “family,”) including:
- Who is the primary caregiver of the pet: Courts have considered which spouse has been primarily responsible for the pet's care, including feeding, exercising, and providing medical care.
- Who has the strongest emotional bond with the pet: Judges have considered which spouse has the strongest emotional bond with the pet, and whether separating the pet from that spouse would cause undue emotional distress.
- The living situation of each spouse: Courts have looked at the living situation of each spouse, including whether they have a home or apartment suitable for a pet, and whether they have the time and resources to care for the pet.
- Any evidence of abuse or neglect: If there is any evidence that one spouse has abused or neglected the pet, this can weigh heavily in favor of the other spouse being awarded custody.
New York courts have recognized the complexities of this issue including the unworkable application of practices and principles associated with child custody cases to dog custody cases. Nevertheless, New York's Domestic Relations Law absolutely requires courts to consider “the best interest of companion animals” when awarding possession of an animal during divorce or separation proceedings.
Overall, the goal of the law is to encourage divorcing couples to work out a custody agreement for their pets that is in the best interest of the animal and the family. If the parties cannot agree, the court will decide. The pet's “best interest” will be given important consideration.
How Can a Pet Be Protected by an Order of Protection in a New York State Divorce Case?
In New York State, orders of protection can include provisions for the protection of pets or companion pets. There is no legal distinction between an ordinary pet and a companion pet in New York State law. However, It is generally understood that companion animals are animals that have been kept for the primary purpose of providing companionship to their owners, rather than for utilitarian purposes such as hunting or farming.
Under New York State law, the court has the authority to include provisions in an order of protection to protect a pet from harm, including orders to remove the animal from the possession of the abuser or to require the abuser to stay away from the animal. The court may also order the abuser to pay for any expenses related to the care of the animal.
If one spouse is concerned about the safety or well-being of a pet during or after the divorce proceedings, they may request that the court include provisions in the order of protection to protect the pet. These provisions may include ordering the other spouse to stay away from the pet, prohibiting the other spouse from harming or threatening the pet, or requiring the other spouse to allow the pet to be cared for by the requesting spouse.