Blending science, culture, compassion and philosophy with legal precedent, Justice Matthew F. Cooper, in his November 29, 2013 opinion in Travis v. Murray, agreed to hold a one-day, winner-take-all hearing to determine the fate of a divorcing couple’s dog, Joey, a two and a half year-old miniature dachshund.
Shannon Louise Travis and Trisha Bridget Murray were married on October 12, 2012. Before their marriage, they resided in the same Upper Manhattan apartment that they continued to occupy after the marriage. On February 6, 2011, while the parties were living together, but before they married, Ms. Travis bought Joey from a pet store. At the time of Joey’ purchase, he was a ten week-old puppy.
On June 11, 2013, defendant moved out of the marital apartment while plaintiff was away from New York on a business trip. Defendant took some furniture and personal possessions with her. She also took Joey. According to plaintiff, defendant first refused to tell her where Joey was, but then later claimed that she had lost him while walking in Central Park.
Ms. Travis filed this Supreme Court, New York County action for divorce on July 11, 2013. Two months later she made this motion requesting that Ms. Murray be directed to immediately account for Joey’s whereabouts since the date he was removed from the marital apartment, that he be returned to Ms. Travis’s “care and custody,” and that she be granted an “order of sole residential custody of her dog.” Once the motion was made, Ms. Murray revealed that Joey was never lost in Central Park, but instead was living with her mother in Freeport, Maine.
Philosophically, Justice Cooper noted:
People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry. All too often, onetime happy spouses end up as decidedly unhappy litigants in divorce proceedings. And when those litigants own a dog, matrimonial judges are called upon more and more to decide what happens to the pet that each of the parties still loves and each of them still wants.
By way of full disclosure, Justice Cooper noted that he owns a dog, a rescued pit bull mix named Peaches. She is loving, loyal and kind, and at age 12 is still able to leap tall buildings in a single bound in order to catch a frisbee. [Disclosure: I own a 4-year old Maltese named Kaidi who greets me everyday at the glass-paneled front door bearing a gift, one of her many stuffed toys which I obligingly toss for her to fetch.]
Justice Cooper made reference to a host of published information:
- The February 1, 2010 issue of New York magazine whose cover featured a photograph of a Boston terrier staring up with a face exhibiting equal parts bemusement and bewilderment, captioned “A Dog Is Not a Human Being Right?” The issue’s lead story, John Homans’ The Rise of Dog Identity Politics, vividly described a canine-centric city where dogs play an ever more important role in our emotional lives, detailing the “humanification” of our pets.
- The Sunday Review section of the New York Times article, Dogs Are People, Too, in which the author, Gregory Berns, a neuroscientist, urged that dogs be granted what the author calls “personhood.”
- Alexandra Zissu’s August 22, 1999, New York Times Style Section article, After the Breakup, Here Comes the Joint-Custody Pet.
- Ann Hartwell Britton’s article, Bones of Contention: Custody of Family Pets, which appeared in the 2006 Journal of the American Academy of Matrimonial Lawyers, discussing the statistics evidencing the depth of the familial attachment to pets.
The limited number of New York judicial decisions left Justice Cooper with little direction on questions surrounding dog custody: Can there be such a thing as “custody” of a canine? If so, how is a determination to be made? And if not, how does the court decide what happens when a couple divorces and each of them wants the beloved dog as her own?
The parties invoked two different approaches in determining which one should be awarded Joey. The first approach was the traditional property analysis, with Ms. Travis maintaining that Joey is her property by virtue of having bought him and Ms. Murray maintaining that the dog is hers as a result of Ms. Travis having gifted him to her. The second approach was the custody analysis, with each side calling into play such concepts as nurturing, emotional needs, happiness and, above all, best interests — concepts that are firmly rooted in child custody analyses.
Whatever one may think of treating our dogs like people — whether it is called “humanification,” “personhood,” or some other means of endowing dogs with humanlike qualities — it is impossible to deny the place they have in our hearts, minds and imaginations. From Odysseus’s ever-faithful dog Argo in Homer’s The Odyssey, to the All-American collie Lassie, to the Jetsons’ futuristic canine Astro, to Dorothy’s little dog Toto too, they are beloved figures in literature, movies and television. And in real life, where would we be without St. Bernards and their casks of brandy in the Alps, Pavlov’s conditioned-response subjects, Balto the hero sled-dog racing to the rescue in the Arctic, or, of course, the Nixon daughters’ little cocker spaniel Checkers?
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. Justice Cooper noted that the prevailing law, which has been slow to evolve, is that, irrespective of how strongly people may feel, a dog is, in fact, personal property — sometimes referred to as “chattel” — just like a car or a table. This means that if a veterinarian negligently dispatches your treasured Yorkshire terrier, the most you can count on recovering as compensation is the animal’s fair market value. Similarly, if that same veterinarian successfully treats the dog but for some reason refuses to return it, your remedy is to bring an action for replevin — the same remedy you would have if an automobile mechanic refused to return your Volvo or your Ford.
Replevin is the means by which non-matrimonial actions regarding ownership and possession of dogs have generally come before New York courts. With the standard for replevin being “superior possessory right in the chattel,” it is the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative.
Justice Cooper further noted that, nevertheless, 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.
Courts in other states have also had occasion to deviate from the strict pets-equal-property viewpoint to find that household pets have a special status surpassing ordinary personalty or chattel.
Not to show favoritism, Justice Cooper pointed out that because the case before him was about a dog, the decision, with the exception of one cited case concerning a bird, largely focused on dogs. Yet, Justice Cooper thought it must be acknowledged that cats, for reasons that might be hard to fathom by dog-owners, also play an important role in our lives as companion pets. And even though cats are far less visible in this city, as they neither walk on leashes — usually — nor play in dog runs, they are clearly experiencing a wave of popularity not equaled since ancient Egypt, when their hieroglyphic images adorned obelisks and tombs.
Justice Cooper found the “de-chattelization” of household pets supported by the First Department decision in Raymond v. Lachmann (264 A.D.2d 340, 695 N.Y.S.2d 308 ). There, on a summary judgment motion in an action for possession, the court was called upon to resolve the issue of who was entitled to “ownership and possession of the subject cat, Lovey, nee Merlin.”
In a short, poignant opinion, the court wrote:
“Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.”
For Justice Cooper, Raymond was significant for both what it did and did not do. The decision was a clear statement that the concept of a household pet like Lovey being mere property is outmoded. Consequently, it employed a new perspective for determining possession and ownership of a pet, one that differed 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. The factors touched upon in the decision include the concern for Lovey’s well-being as an elderly cat and the special relationship that existed between him and the person with whom he was living, a relationship that is described, rather nicely, as one where Lovey has “loved and been loved.” In making its determination to keep Lovey in his present home, the First Department apparently concluded that the intangibles transcended the ordinary indicia of actual ownership or right to possession such as title, purchase, gift, and the like.
Justice Cooper concluded:
where two spouses are battling over a dog they once possessed and raised together, a strict property analysis is neither desirable nor appropriate. Although Joey the miniature dachshund is not a human being and cannot be treated as such, he is decidedly more than a piece of property, marital or otherwise. As a result, whether plaintiff bought Joey from the pet store with her own funds or whether defendant received him from plaintiff as a gift is only one factor to consider when determining what becomes of him.
But if not a strict property analysis, what should be the process by which Joey’s fate is decided and what standard should be applied in making that determination? Should the court adopt a custody analysis similar to that used for child custody? And if so, is the well-established standard of “best interests of the child” to be replaced by that of “best interests of the canine?”
Because of the paucity of New York case law addressing these matters, Justice Cooper turned to decisions from the courts of other states. The majority of cases from other jurisdictions, however, declined to extend child custody precepts to dog disputes. Some have been plainly dismissive. Still, there was a good body of case law from other states that, while not embracing the application of child custody principles to cases of dog ownership and possession, took a nuanced position that considers at least some of the factors traditionally associated with child custody.
With the one Alabama case, even the decisions employing custody or custody-like considerations to dog disputes have uniformly rejected the application of a “best interests” standard. Quoting one Vermont decision, “However strong the emotional attachments between pets and humans, courts simply cannot evaluate the best interests of an animal.” A New Jersey decision acknowledged that “sincere affection for and attachment to” a pet is a special subjective value that needs to be considered in resolving questions about possession.
Justice Cooper noted that the First Department in Raymond used the term “best for all concerned,” not a “best interests” analysis.
The wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. . . . It is impossible to truly determine what is in a dog’s best interests. Short of the type of experimental canine M.R.I.s discussed in the New York Times piece, Dogs are People, Too, there is no proven or practical means of gauging a dog’s happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interests analysis in child custody — particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations — are, for the most part, unascertainable when the subject is an animal rather than a human.
Even if there were a method to readily ascertain in some meaningful manner how a dog feels, and even if a finding could be made with regard to a dog’s best interests, it is highly questionable whether significant resources should be expended and substantial time spent on such endeavors. It is no secret that our courts are overwhelmed with child custody cases, cases in which the happiness and welfare of our most precious commodity, children, are at stake. To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable.This does not mean, however, that cases like this one, in which it appears that each spouse views the dog as a family member and sincerely believes that he would be better off in her care, should be given short shrift. After all, matrimonial judges spend countless hours on other disputes that do not rise to a level of importance anywhere near that of children. If judicial resources can be devoted to such matters as to which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet.
With this in mind, Justice Copper held, it was appropriate that the parties here be given a full hearing. Full, however, did not mean extended; the hearing would not exceed one day. The standard to be applied will be what is “best for all concerned.” In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life, but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey’s needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did Ms. Travis leave Joey with defendant, as Ms. Murray alleges, at the time the couple separated? And perhaps most importantly, why had Ms. Murray chosen to have Joey live with her mother in Maine, rather than with her, or with Ms. Travis for that matter, in New York?
Absent an appeal, the one-day hearing to determine who gets Joey would be the final proceeding on this issue. The award of possession will be unqualified.
Whichever spouse is awarded Joey will have sole possession of him to the complete exclusion of the other. Although regrettably a harsh and seemingly unfeeling outcome, it is the only one that makes sense. As has been stated, our judicial system cannot extend to dog owners the same time and resources that parents are entitled to in child custody proceedings. The extension of an award of possession of a dog to include visitation or joint custody — components of child custody designed to keep both parents firmly involved in the child’s life — would only serve as an invitation for endless post-divorce litigation, keeping the parties needlessly tied to one another and to the court.
Justice Cooper noted that although courts should not entertain applications for “joint custody or visitation” with regard to a pet, the parties are, of course, always free, and in fact are encouraged, to informally make their own arrangements. These arrangements, however, cannot be judicially sanctioned by way of a “so ordered” stipulation or agreement, and they will not be enforceable in a post-judgment or any form of court proceeding.
[It is unclear why parties are not competent to make an enforceable agreement for the use of their property. Why would an agreement that X gets the Ferrari for the first half of the month, Y for the second, not be enforceable as a matter of property law?]
[Moreover, New York may well have a mechanism to give special consideration to pets in divorce actions. The pet, as property, can be distributed “equitably.” After all, the courts are charged with the duty to “determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.” (D.R.L. §236[B]).
In determining the result:
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the
court shall consider:
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; and
(14) any other factor which the court shall expressly find to be just and proper.]