Arons & Solomon | July 18, 2018 | Articles
When a couple pursues a divorce, all issues surrounding the case are put on the table. Both spouses must reach a consensus on division of assets and debts, spousal support, and child custody in negotiation, or let the courts decide for them. Spouses can typically decide who keeps the car. But what about the dog?
The concept of “pet custody” is a relatively new area within the field of family law, and the rules governing the issue vary by state. In almost every state (including New Jersey), pets are considered personal property, like furniture or a flatware set.
However, the case law surrounding animal rights is quickly evolving and continues to hold significant implications for New Jersey divorce.
Please note: The phrase “pet custody” is a colloquial term in New Jersey, not a legal one. What we are really talking about in this blog post is the ownership of property (aka. the animal).
Are There Laws on the Books for Pet Custody?
In 2017, Alaska became the first state to require courts to consider the well-being of the animal in a divorce hearing, marking a clear legal distinction between pets and personal property. According to the new law, judges may grant joint custody of animals in divorce proceedings and include pets in domestic violence protective orders, as they would for children.
According to the Animal Legal Defense Fund, family court judges in every state already have the option to consider the animal’s well-being at their own discretion. Alaska’s law was simply the first in the country to require judges to do so, and the first to specifically allow for joint pet custody orders.
In 2018, Illinois quickly followed Alaska’s lead with a law that allows for sole or shared pet custody in divorce proceedings based on the “best interest of the animal.”
Unfortunately, family pets are still considered personal property in New Jersey. There is some NJ case law that establishes an animal as a sentimental, priceless piece of property. But still, this “property” status means the fate of the animal typically remains a single piece of the larger property division negotiation.
Factors That May Help Determine Pet Custody
If you are seeking a divorce and want to keep the family pet, it’s important to gather as much evidence as possible to make your case for ownership. If both parties fail to reach a consensus in negotiation, a judge will consider several factors when determining who keeps the animal:
- Did one party own the pet before the relationship began?
- Who spends the most bonding time with the pet?
- Who acts as primary caretaker of the animal? (i.e., veterinary visits, buying food, walking, administering medication, grooming, etc.)
- Who has appropriate space in their home for the animal?
- Where will the children be living? (This variable is often weighed the heaviest. Animal companionship helps children cope with the stress of a divorce, and in some cases may be considered “the best interest of the child.”)
Pet Custody Case Law in New Jersey
The most significant New Jersey case law addressing pet custody was Houseman v. Dare in 2009. An engaged couple jointly owned a pedigree dog named Dexter in their shared home.
When the couple broke up, they verbally agreed to let the female partner keep the dog. The male kept the house (after buying her out) and she kept the dog. A little less than one year later, the female went on vacation and allowed her ex-partner to babysit the dog. When she returned, he wouldn’t give the dog back.
The female took the case to trial, maintaining the ex-fiancé had broken their oral agreement that she would keep the dog. The court ruled in favor of the ex-fiancé. Instead of getting the dog back, she was awarded $1500 for the original cost of purchasing the dog. Unsatisfied, she appealed the decision.
The Appellate Division court reversed the decision and remanded it back to the trial court for further review. The trial court ruled in favor of a shared custody arrangement between the two parties, using the legal principle of specific performance. Parties would alternate possession of the dog every five weeks.
The Houseman v. Dare decision set the following precedent in New Jersey:
- Pets are still considered personal property, but they have a unique sentimental value that cannot be quantified with a price tag
- Pet ownership rulings are based in contract law, not the “best interest of the animal”
- New Jersey courts can issue shared possession orders for family pets
Avoid Pet Custody Battles Before They Start
Nobody enters a new relationship already planning for the breakup. However, if you have a cherished bond with an animal companion, you should address the pet custody issue in a prenuptial agreement or cohabitation agreement to avoid potential conflict down the road.
If you are currently seeking a divorce and have no written agreement governing pet custody, consider making other concessions in your divorce settlement in exchange for possession of the animal. There is little case law governing pet custody in New Jersey, which means the issue is almost entirely left up to the judge’s discretion. Negotiation allows you to maintain control over the decision-making process, rather than leaving your animal’s fate for the courts to decide.
Hire a New Jersey Divorce Lawyer
We understand your pets are not merely pieces of property. If you are fighting for pet custody in northern New Jersey, we can help.
Arons & Solomon can help preserve your relationship with your beloved “fur baby.” Contact us today for a free consultation.