Despite my best efforts as a volunteer attorney for the Animal Legal Defense Fund, the Courts in New Jersey do not view pets as they do children. In the case of Houseman v. Dare, I argued that the Court should apply a “best interest” of the pet standard, when custody of the family pet is in dispute. Although the Court was unwilling to go this far, that is, to equate pets to children as I advocated, this case made great strides for the protection of animals in the middle of divorce or failed relationship.
Animal custody is not analogous to child custody, despite the fact that many of us consider our pets to be like our other children. Although we were unable to convince the Appellate Division to take a tremendous step and adopt a best interest standard, thankfully, as a result of the Houseman case, animals are elevated in the eyes of the law in the State of New Jersey and are no longer considered akin to the television, car or retirement fund. This is how animals are typically viewed—solely as property, even though they are sentient beings. Since furniture and retirement accounts don't walk and breathe, Courts allocate credits and debits against the value of items in the marital estate with ease. But dealing with animals was harder. In the old days, the Judge would bring the animal to Court and put each parent at either side of the courtroom and whoever the pet ran to, that is who the dog went home with. It was commonplace for people to lace their pockets with bacon or other treats to get a leg up. Now, we have the seminal case of Houseman which alleviates such a manipulated circus.
Pursuant to the opinion in Houseman, family pets now have special value! In the eyes of the law, family pets are now more like your grandmother's armoire, or, in my case, my Father's guitar; there is no amount of money that can replace it. In legal terms, specific performance is now a remedy in the event of a breach of an agreement regarding custody of a pet. This means that a party can be compelled to comply and return the animal consistent with the parties' agreement, and cannot simply compensate the other party for the monetary value of the animal. So as to avail yourself of this protection, should you need it, parties should come to an agreement with respect to the “custody” and “parenting time” of your family pet, prior to finalization of a divorce, and include the terms and provisions in a settlement agreement. One should also consider allocation of the costs to raise the pet and address potential issues should your pet become ill or terminal. Just because the law doesn't yet say that the best interests of the pet control, doesn't mean that you shouldn't do a best interest analysis when advocating for custody of your pet if your relationship fails. Take a look at who cares for the animal most, who the animal prefers, and who is better able to care for the pet when negotiating a custody and time-sharing arrangement for your pet.
While Houseman made great strides in the development of protections for pets, there is much work to be done. Check out the Animal Legal Defense Fund (aldf.org) to see how you can help and get involved.