Lines from Linda: Whose Leash is it Anyway
BY LINDA AYERS TURNER KNORR
“WHEN PETS ARE CONSIDERED PROPERTY,
A COURT WILL TREAT THEM NO DIFFERENTLY THAN ANY OTHER PIECE OF PROPERTY.”
various ways. Kansas follows the “all property” distribution in which the court divides all property acquired before or during the marriage. Id. Other states that use the equitable distribution of community property will divide all property acquired during the marriage or, like Missouri, use the “deferred community property” method and divide all property acquired during the marriage aside from gifts, inheri- tances and devices. Id. Based on the various methods of splitting property across the country, the distribution of pets can vary quite a bit with a range of discretion from judges depending on the jurisdiction. However, several jurisdictions have departed from classifying animals as personal property and created different categories. The primary movement in this area is the “best for all concerned” standard first expressed in Raymond v. Lachmann and further expanded on in Travis v. Murray. Raymond v. Lachmann, 264 A.D.2d 340 (N.Y. App. Div. 1st Dep’t August 19, 1999); Travis v. Murray, 42 Misc. 3d 447 (N.Y. Sup. Ct. November 29, 2013). Also proposed is a “best interest of the pet” standard that is used in some jurisdictions, while more frequently rejected by others.
Some jurisdictions have also awarded joint custody, though this is even more scarce than application of the “best interest of the pet” standard. Raymond, a case from the Supreme Court of New York, Appellate Division, involved a dispute in ownership of a ten-year-old cat. Raymond, 264 A.D.2d at 340. The appellate division reversed the lower court’s ruling and stated that it would be best for all concerned if the aging cat remain with the defendant at the home she has “lived, prospered, loved and been loved for the past four years.” Id at 341. The reasoning of the court was that a “best for all concerned” standard would be the most efficient for the judicial system while still hon- oring citizens’ strong bonds with their pets. Id. In Travis, the Supreme Court of New York reinforced the “best for all con- cerned” standard stated in Raymond and denounced the “best interest of the pet” standard. Travis, 42 Misc. 3d 447. In Travis, plaintiff and defendant adopt- ed a dog named Joey while they were living together, but before they were married. Id at 450. After eight months of marriage, the plaintiff files for divorce and files a motion for granting an “order for sole residential custody of her dog,” Joey. Id . The plaintiff claims that she bought Joey with her money before the marriage and she cared for Joey regular- ly, so it would be in Joey’s best interest to be in her custody. Id. The defendant claims that Joey was a gift from the plaintiff after she gave away her cat at plaintiff’s insistence. Id . Defendant also states that she takes part in sharing Joey’s costs and needs and that it would be in Joey’s best inter- est to remain with her mother in Maine where plaintiff could visit Joey regular- ly. Id. In other words, the plaintiff and defendant are both utilizing two differ- ent approaches, the traditional personal property approach and the “best inter- est of the pet standard.” Id at 451. The court found that a personal property approach is not adequate when a couple has raised a puppy together. Id at 456.
The court discusses the “best interest of the pet” standard utilized in other juris- dictions, but finds that there is substan- tial resistance to that particular move- ment. Id. The court also highlights the difficulties in using the “best interest of the pet” standard such as the difficulty involved in gauging a dog’s happiness or preferences. Id at 459. The court then makes clear that the “best for all con- cerned” standard used in Raymond is the appropriate standard to utilize and that the parties are entitled to a hearing in which the parties can be questioned about their relationship with Joey and the award possession will not include aspects such as visitation. Id at 460. The court concluded by granting plaintiff’s motion to the extent of having a hear- ing on the final possession of Joey. Id at 461. Some courts have also applied the “best interest of the pet” standard. In Placey, a case from a civil court in Alabama, an ownership dispute arose between a mother and daughter over a dog named Preston. Placey v. Placey, 51 So. 3d 374 (Ala. Civ. App. June 11, 2010). The court heard testimony about the dog from both parties and held that “Preston would be better cared for in the family home occupied by the moth- er, where Preston had spent the last six years of his life.” Placey, 51 So. 3d at 379. In other words, the court applied a solution that focused on what would be best for Preston based on the testimo- nies of the parties. While many courts have frowned on the idea of shared custody and visitation of pets, mostly due to the vast judicial resources that hearings on custody of pets would almost inevitability require, some courts have allowed it. In Van Ars- dale, the Connecticut Superior Court allowed two parties joint custody of a pair of Labrador Retrievers. Van Ars- dale v. Van Arsdale, 2013 Conn. Super. LEXIS 574. However, while joint cus- tody of pets has been done, it is done very rarely, not only to conserve judicial resources, but as a matter of public pol- icy that divorce should be the cutting of
Anastasia Maria Hall studies law at Ohio Northern University
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how S ight M agazine , J uly 2018
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