Nobody Puts (Fur) Baby in the Corner
January 19, 2021
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
Tips for Pet Custody from a Divorce Lawyer
As a full-blown crazy cat parent, it’s hard for me to believe that New Jersey courts consider our beloved pets (“fur babies,” if you will) as “chattel” or property. Although, New Jersey courts recognize that pets have a special subjective value, they are not bound to address custodial arrangements as they are in cases involving human children. However, New Jersey courts will honor an agreement between two parties with regards to actual ownership of or time-sharing with a formerly shared pet.
In Houseman v. Dare, the trial court initially found that pets are personal property that lack the unique value essential to an award of specific performance (in this case, actual ownership as opposed to the distribution of the property’s monetary value). Therefore, the trial court denied Plaintiff’s request to enforce an oral agreement between her and her former fiancé, Defendant, in which Plaintiff claimed Defendant had agreed to give her possession of the dog upon their separation. Instead, the trial court awarded Plaintiff a total of $1,500 for the purchase price of the dog, but denied her request for specific performance of the oral agreement.
In its review, the Appellate Division remanded the case back to the trial court. The Appellate Division rejected the trial court’s initial ruling that the parties’ oral agreement may not be specifically enforced by the court. In fact, the Appellate Division went to great lengths to liken pets to heirlooms, family treasures, or works of art – all tangible property that induce a strong sentimental attachment from their owners. The Appellate Division noted that money damages cannot compensate the injured party for the special subjective benefits derived from those possessions. Therefore, the request for specific performance as to ownership of a pet is appropriate and can certainly be addressed by the Family Part. The Appellate Division remanded the case back to the trial court and ordered that the trial court to conduct further proceedings on the existence of an oral agreement about ownership and possession of the dog and the propriety of specific performance as a remedy in the matter. After the case was remanded back to the trial court, the trial court reversed their initial decision and ordered that the parties alternate time with of the dog every five (5) weeks. However, since custodial arrangements are still reserved solely for human children, the trial court could not award custody and, instead, awarded “alternating possession.”
Because custody is not awarded when it comes to our beloved pets, the courts are not bound by the custody statutes and case law as with human children. New Jersey courts have not caught up to courts in other states such as Alaska wherein pet custodial arrangements are now being treated more like those of human children including joint decision making, shared visitation time, and the consideration of the pet’s best interest. Therefore, the “best interests” your pet are not part of the court’s analysis – the court will only consider the special subjective value held by the human parties. So, how do you protect your rights to share your fur baby in the event of a separation or divorce?
Our number one tip is to formulate a written agreement with your partner. This will ensure that your wishes are enforced by a New Jersey court. Following the court’s holding in Houseman v. Dare, New Jersey courts will honor an agreement between two parties with regards to what happens with their pets upon separation. However, absent an agreement, the courts will treat your beloved pet as though her or she were akin to a family heirloom – that means there is a possibility of shared possession, but same is not required.
If you and your partner adopted or purchased your pet prior to marriage, and you both decide you want to enter into a prenuptial agreement before marriage, including your pet in your prenuptial agreement is certainly a good idea. In the event you did not execute a written agreement prior to entering into your marriage, you can certainly address who retains your pet in settlement discussions.