As more and more couples are disputing pet custody issues when divorcing or separating, there is increasing concern in the legal community about how to fairly adjudicate these disputes, without unnecessarily burdening the already over-burdened court systems.  The courts in New Jersey have so many judicial vacancies, that “the chief justice of the New Jersey Supreme Court suspended civil and matrimonial trials in six New Jersey counties.” Impacted vicinages include Cumberland, Gloucester, Hunterdon, Salem, Somerset, and Warren.

Which begs the question as to whether existing and pending legislation will help or exacerbate this situation, For example, Tennessee House Bill 467 was recently introduce, which would permit courts to “provide for the ownership or joint ownership of any pet or companion animal owned by the parties, taking into consideration the well-being of the animal.”  As we previously reported, “in January of 2017, Alaska became the first state to enact ‘pet-custody legislation,’ which explicitly allows matrimonial courts to take into consideration a pet’s well-being in issuing awards.”

But the court does not require express permission to make such a determination.  See, e.g., Raymond v. Lachmann, 695 N.Y.S.2d 308 (N.Y. App. Div. 1999) (“The Supreme Court, Appellate Division held that it was in best interests of cat that it remain in home of possessory party where it had lived for past four years.”) (emphasis added). There are alternatives that partners and spouses should consider before anything disrupts their relationship, that could at least make pet custody issues less painful during a divorce/separation. As my partner, Mark Ashton recently noted “[e]very year more and more time is devoted by lawyers to pet custody. And, candidly, it is not productive time.” 

Mark offers recommendations for inclusion in pet custody agreements, including, in part (see blog for complete discussion):

  • “If the owners of a pet acquired during the marriage separate, the pet will spend one week with each party until an arbitrator decides differently. If, for whatever reason an owner does not take his/her week, he/she will pay $50 (you fill in the price) + any routine pet sitting or veterinary bills which are incurred during that week.”
  • Appoint arbitrator to decide contested pet issues that is binding and unappealable, and the cost of which is divided equally between the parties.

Concerns arise when pets have known health conditions that require considerable financial resources and/or home care.  Those issues must be considered, but input from an expert may be required if an arbitrator must decide the optimal course of action. In fact. an analysis of all the economics related to pet ownership should be used as a tool to help inform arbitrators or other adjudicators decide where a beloved pet should reside to ensure it is properly cared for.

As pets become increasingly important in many households in the United States, their disposition after divorce/separation will continue to be the subject of legal disputes.  Addressing these issues with reasonable agreements that pre-date such disputes should benefit everyone involved.