You love your dog. He is just as spoiled as your children. He has toys; he sleeps in your bed; he even gets a monthly subscription box full of goodies. Along with your children, your dog is included in your Will. He is family.

While contemplating the potential end of a relationship when adding a pet to a home may seem absurd, the reality is that pets often outlive human relationships. When they do, who gets custody? Is the pet treated like a child with a sharing arrangement? If so, how are expenses for the pet divided? Most importantly, what does the law say?

For much of New York's history, dogs and other companion animals were strictly treated as property; the same as a couch or lamp. See Mullaly v. People, 86 N.Y. 365 (1881). That means, when a couple broke up, the court treated the pet as a piece of personal property to be awarded to one of the parties. Appreciating the connection we have with our pets, courts are finally rethinking how we treat them during a break-up.

In 1999, in a case involving a dispute over ownership of a cat, the court held: “we think it best for all concerned” that the cat remain with the defendant, citing the cat's old age and limited life expectancy, and the fact that he had “lived, prospered, loved and been loved” by the defendant for several years. Raymond v. Lachmann, 264 A.D.2d 340 (1st Dep't 1999). The court also specifically recognized the “cherished status accorded to pets in our society” as well as “the strong emotions engendered by disputes of this nature” in declining to apply a traditional property-based analysis. Id. Raymond's handling of the distribution came to be known as the “best for all concerned” standard.

Since Raymond, several trial courts have adopted its standard. One such case occurred in 2013, wherein parties to a divorce sought possession of a dog acquired during the marriage. Travis v. Murray, 977 N.Y.S.2d 621 (Sup. Ct. New York Cty. 2013). At the time of the divorce, the parties had spent over two years together raising the dog. Id. at 623. In determining who would take possession of the dog, the court recognized the law regarding companion animals was grossly out of step with people's perceptions regarding their pets, stating: “While the dog owners of New York might uniformly regard their pets as being far more than mere property, the law of the State of New York is in many ways still largely at odds with that view.” The court went on to acknowledge that “at the same time that the traditional property view has continued to hold sway, there has been a slow but steady move in New York case law away from looking at dogs and other household pets in what may be seen as an overly reductionist and utilitarian manner.” Id. at 626. Highlighting the Raymond decision, Travis called it “one of the most important statements from a 'modern court' as to the 'de-chattelization' of household pets.” Id. at 627. The Travis court explained:

The [Raymond] decision is a clear statement that the concept of a household pet [] being mere property is outmoded. Consequently, it employs a new perspective for determining possession and ownership of a pet, one that differs radically from the traditional property analysis. This new view takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.

Employing the “best for all standard,” Travis explained that “a strict property analysis is neither desirable nor appropriate,” because a pet “is decidedly more than a piece of property.” Id. at 628. The court aptly recognized that “[t]he changes in the way society regards dogs and other household pets all but insure that cases involving [this] type of dispute … will only increase in frequency,” and offered hope that Raymond's guidance would assist other courts in the future. Id. at 632.

One year after Travis was decided, the standard was again employed in Hennett v. Allan, 43 Misc.3d 542 (Sup. Ct. Albany Cty. 2014). In Hennett, long-term partners who had never married disputed possession of their dog. When they separated, defendant signed an acknowledgment stating all of his “personal property” had been removed from their former residence, and any remaining “personal property” constituted the sole and separate property of the plaintiff. Plaintiff claimed that the dog belonged to her because it was “personal property” left at the residence. In deciding the case, Justice Michael Lynch (now of the Appellate Division, Third Department) thoughtfully analyzed the evolution of New York's case law in this area, identifying a “recent trend” determined “to treat companion dogs as more than just property.” Id. at 545-46. Reviewing Raymond and Travis, Justice Lynch concluded that the dog was not “personal property” (id. at 547), declaring:

Today, we should take the next step in recognizing that pets are more than just “personal property” when it comes to resolving disputes between owners. In such disputes … pets should be recognized as a “special category of property.” It follows that the reference to “personal property” in the subject release does not extend to [the parties' dog]. Certainly, the attachment each party professes to have with [the dog] would only be consistent with recognizing that [the dog] falls within a “special category of property” that is simply not covered by the release.

But how does the court determine who gets the dog? In Hennett, the court determined it necessary to hold a hearing focused upon “the circumstances as to how [the dog] was acquired and cared for, and the actual arrangement between the parties for spending time with [the dog] after defendant left the [parties'] residence.” Id. at 548.

Since Hennett was decided in 2014, a host of trial courts across the state have continued the trend of adopting this standard and turning to Justice Lynch's handling for support. In Ramseur v. Askins the parties disagreed over possession of a two-year-old Shih Tzu (Ramseur v. Askins, 44 Misc.3d 1209(A) (Civil Ct. Bronx Cty. 2014)). Citing Hennett, Ramseur held that “companion animals fall within a 'special category of property,'” and, accordingly, applied the “best for all concerned” standard. In applying the standard, Ramseur also saw fit to apply Travis's “straightforward factors,” as they provide “parties and courts clear direction when deciding with whom a treasured pet should reside.” Id.

The standard was again applied the following year in Gellenbeck v. Whitton, where the court was asked to rule on an ownership dispute involving the family dog. There, the court held, “[c]onsistent with Travis v. Murray, in making its determination, this Court will apply the standard of 'what is best for all concerned,' and the parties each have the burden of proving why [the dog] will have 'a better chance of living, prospering, loving and being loved' in the care of one [party] as opposed to the other.” Gellenbeck v. Whitton, 2015 NY Slip Op. 30289(U) (Sup. Ct. New York Cty. 2015).

Likewise, in Nero v. Fiore, “in an action for replevin for a pet,” the Supreme Court, Nassau County, explained that it “can consider what is 'best for all concerned'” when deciding which party should retain possession of the dog (Nero v. Fiore, 2016 NY Slip Op. 30332(U) (Sup. Ct. Suffolk Cty. 2016). And again, in Mitchell v. Snider, when asked to determine whether an unmarried split-up couple's dog belonged to the ex-boyfriend who purchased it or the ex-girlfriend who possessed it, a judge in Manhattan determined that the “best for all concerned” standard was the “correct standard to be applied in dog possession cases.” Mitchell v. Snider, 2016 NY Slip Op. 50877(U) (Civil Ct. New York Cty. 2016). In deciding the matter, the court, relying again on Hennett, held:

In a case where parties claimed to have purchased and selected a dog together and they both have a strong relationship with the dog and extensive involvement with the dog's care, the court [is] tasked to determine which party [has] the most genuine right of possession through his or her conduct. Such analysis require[s] consideration of how the dog was acquired and cared for and the arrangement between the parties after one party left their joint residence.

Mitchell expanded the Travis factors, reasoning that “ownership is just one factor to consider when determining who should possess the dog based upon the best for all concerned analysis. The court must also consider intangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving and being loved in the care of one party or the other.” Id. Mitchell ultimately offered the following “best for all concerned” factors: Who is in the best position to meet the dog's daily physical and emotional needs based on a healthy, active lifestyle; time constraints on each party; type of home and yard of each party; the emotional bond each party shares with the dog; any safety concerns for the dog while in the care of either party; each party's financial ability to care for the dog; opportunities to socialize with other dogs; access to dog-friendly parks and outdoor activities; access to veterinary care and pet stores; each party's ability to care for the dog, including, but not necessarily limited to, feeding, watering, walking, grooming, bathing, petting, playing, training, taking the dog to the veterinarian and engaging in other recreational and dog-friendly activities. Id.

The court ultimately determined that “both parties were co-owners of the dog,” as it was “evident that both parties intended to be joint owners of the dog at all times” prior to the parties' separation. Id. However, based on the circumstances of the case, the court determined that the defendant should retain possession of the dog, but noted that this was only necessitated because the plaintiff “decided to move across country and make it virtually impossible to continue their agreed upon alternating care arrangement.” Id.

Most recently, Supreme Court, Nassau County retreated from this trend. In a 2018 divorce proceeding involving the contested ownership of a dog jointly cared for during a marriage (L.F.M. v. S.R.M., 2018 NYLJ LEXIS 2851 (Sup. Ct. Nassau Cty. 2018)), the court analyzed the issue by first classifying the dog as to property, but by then continuing the “more recent trend” of treating companion dogs as more. Id. The court in L.F.M. arrived at the conclusion that “in all matrimonial matters before this court, the court adopts the 'best for all concerned' standard as the presumptive norm if pet visitation is presented to the court as an issue between the parties.” Id. The court in L.F.M. then took this analysis a step further and concluded that, as a general rule, “[i]f there are no children of the marriage, this Court will implement a shared pet visitation schedule on a weekly or bi weekly basis depending on the parties' proximity to each other.” Id.

In sum, whether you're married, engaged or dating, couples often test the compatibility of their relationships by their ability to “co-parent” a treasured family pet. Just like a future child, our pets come with emotional, psychological and financial responsibilities that may outlive our relationships. New York, through its judicial decisions, has taking note of this reality. Thanks to our thoughtful and forward-thinking judiciary, pet owners are not without recourse to determine what type of ownership arrangement of their pet is “best for all concerned.”

Lorraine R. Silverman is a partner with Copps DiPaola Silverman, where she practices divorce, family, intimate partner law.