This issue is all too real for Lenny* from New England. His relationship of three years took a turn for the worse, and he and his girlfriend decided to part ways. Lenny had adopted a dog while they were still together. The dog was intended to be his, though she was attached to it as well, but the dog was in his name. After their relationship disintegrated, Lenny came home to find out she'd taken the dog, the paperwork associated with the dog and left (not just the house, but the state).
Lenny was heartbroken. Sure, he thinks the dog would be better off with him because he has a better job and a more flexible schedule (his ex works 12-hour shifts). But mostly, he just misses his dog. "Mostly I miss the companionship, unconditional love, the pride in his learning abilities and his gentle demeanor. He was my best friend," he says.
And if the dog were ever to get into any trouble, the paper trail being linked to Lenny could cause him some legal issues in the future.
So now the chance of Lenny ever getting his pet back is up to the law. Your pet may be a child to you, but in the eyes of the law, pets are generally considered property, and a judge may or may not consider your emotions or even what's best for the animal when making a determination.
According to New York family law attorney James J. Sexton, who has no connection to Lenny's case, "How a judge handles the issue is, often, informed by that individual judge’s experience with animals. I’ve had cases where judges who are dog owners themselves acknowledge, on the record, that it would be inequitable to treat the equitable distribution of a dog in the same manner as non-sentient property (like a couch)."
But Sexton cautions, "Some judges, however, remain focused on the lack of any legal statutory distinction between pets and other property." Sexton tells us he's even had judges take a King Solomon-style approach, ordering that if the parties can't come to an agreement, they'll be ordered to sell the dog and split the money.
If the judge considers the animal property, it will probably come down to documentation. Who bought the animal? Who has paid the expenses for the animal? Whose name is on the official license and veterinary records? Who owned the animal before marriage? But even that is no guarantee. If a couple is married, the judge has more latitude to decide what's equitable in terms of the overall division of property.
If the judge treats the animal like child custody, the judge may take into account the recommendations of a veterinarian about whom the more appropriate owner is in terms of things like who has more time to spend with the dog (it may not matter as much for cats and the like), whose home or backyard is more appropriate for the animal, etc. Generally, the financial situation of the owner won't be considered. The judge may even take the children into account, granting custody of the dog to the custodial parent or stating that the dog must go with the children (so the dog will get carted back and forth as the kiddos do).
As for Lenny, he hasn't decided what to do yet. He's tried to get his beloved pet back, but his ex was uncooperative. Six months later, Lenny's still in limbo. He could take her to civil court where if she can't or won't pay for the animal (or her court fees), she would have to give it back. Because of the paper trail he has, he also has the option to have her charged with grand larceny (a felony). Understandably, he's hesitant because of how that might ruin her future. Otherwise, he can only outline to her why she is wrong and hope she takes his concerns seriously.
How can you prevent yourself from getting in a similar situation? Sexton's advice is to get a prenup, document ownership all along the way and make sure all of that documentation is somewhere it can't be stolen.
Have you had to fight for a pet in a custody battle?
* Because this is an ongoing issue, the interviewee's name has been changed and other personal details obscured to protect his identity.
Legal disclaimer: The information provided herein is general in nature and should not be taken as legal advice. Your options and results will vary based on your state of residence (and the laws therein), the discretion of the judge and your specific circumstances. Please contact a qualified family law attorney for a consultation.
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