Article updated August 31, 2018 based on a recent Nassau County case dealing with dogs.

You and your spouse own your lovable dog named Shadow (or any other type of pet, including cats).  You decide to get divorced and you both want to keep the dog. Who gets to keep the dog? Many pet owners treat their pets as if they are their own children, whether it be a dog, cat, fish, hamster, rabbit, guinea pig or turtle.

You may consider your pet as part of the family. Until recently, courts considered dogs and pets as property, no different than a piece of furniture. However, courts now realize the “cherished status afforded to pets in our society”. Although, dogs and pets are still considered “property”, they understand that dogs/pets should be treated differently than other types of property.  Courts also recognize that the welfare of the pet should also be considered.

In deciding who will keep the dog (or pet), some courts will consider the following factors: (i) who paid for the dog; (ii) whose name as listed as the owner of the pet; (iii) who took the pet to the veterinarian; (iv) who bore the primary responsibility for caring for the pet; and (v) who held themselves out as the owner of the pet through their words and actions.  Additionally, some courts will consider what is best for the dog (or pet), by who is in the best position to meet the dog’s daily physical and emotional needs based on a healthy, active lifestyle, time constraints, type of home and yard, emotional bond, safety concerns, opportunities to socialize with other dogs, access to the outdoor and access to veterinary care and pet stores.

However, some judges will not conduct a hearing on who should get the dog (or pet).  Those judges believe that the courts are already overloaded with divorce cases, child custody cases, child support cases and other matrimonial issues.  Those judges, will implement a schedule such that each party will get the dog (or pet) on a weekly or bi-weekly basis.  They believe this set formula will negate the need for a hearing with regard to pet custody/visitation.

Overriding all of the above, is whether the parties have children and a dog or pet.  In those situations, typically, the pet/dog will follow the children.  In other words, when the children are with one parent, the pet is with that parent as well.  When the children go with the other parent, the pet follows.  Many parents find this solution works for the children, themselves and the pet.

There are also two other categories of pets that will require a different standard in determining who gets the pet, they are: (i) Service Animals (traditionally dogs) and (ii) Emotional Service Animals.

A service dog is a dog that is specially trained to help someone with disabilities, either visual, hearing, mobility, or some other type of disability.  If one of the parties in a divorce has a service dog, then that person will continue to retain the service dog after the divorce.

An emotional support animal (or dog), is a dog that is a companion that typically helps someone with some type of mental health disability, anxiety, depression or phobia.  Emotional support dogs do not have the same rights as a service dog.  There is no accepted standard on how a dog is qualified to become an emotional support dog.  For that reason, courts are reluctant to treat an emotional support dog the same way as a service dog.

David Badanes and the Badanes Law Office love dogs and animals and understand the emotional connection that you have with your dog and pet.  They have helped numerous individuals with dogs and pets to arrive at common-sense solutions.  If you need an attorney to represent you in your divorce, call David Badanes and the Badanes Law Office today at 631-239-1702 or email me at david@dbnylaw.com.

The Badanes Law Office has offices in Suffolk County (Northport, NY) and in Nassau County (Uniondale, across from the Nassau Coliseum).

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