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Oct 22, 2016BY: Iris Horowitz
IN: Is Collaborative for You?

Who Gets Custody of Fido in the Divorce?

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According to the New York Post article, Dogs are the new kids in NYC custody battles, “A 2014 survey from the American Academy of Matrimonial Lawyers (AAML) found a 27 percent increase in the number of couples who have fought over custody of a pet during the past five years.”

Traditionally, the New York courts have considered the family pet as personal property. The standard for deciding who gets the pet, even when there was a divorce or break-up of domestic partners, had more to do with who was technically the owner (i.e., who bought the dog, and paid for its upkeep), rather than considering the emotional attachment that a person has to a pet.

However, New York County Supreme Court Justice Matthew F. Cooper recognized in Travis v. Murray that “labeling a dog ‘property’ fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property.” In the Travis case, the fate of a two and a half year-old dachshund named Joey was at stake. What’s a judge to do?

Once coming to that conclusion, and leaning heavily on the manner in which contested child custody cases are decided, Judge Cooper determined that the more reasonable way to decide “who gets the dog” was to have a one day hearing and make a decision based on the “best interests for all concerned.”

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 them still wants.

Now, while it is laudable that pets might not be treated as mere chattel in the context of divorce, or cohabiting partners, the courts are already overburdened resolving family breakups. But, litigation is not the only way to resolve the fight over Fido or the clash over Kitty.

Collaborative Divorce is a kinder, gentler approach to resolve family disputes, whether the goal is for parties to obtain a divorce, to settle matters of child custody, resolve support, etc. Collaborative Divorce is equally applicable to matters of pet custody.

Using the Collaborative approach, the parties agree to settle their issues outside of Court using attorneys trained to work together applying mediation principles to resolve their issues. Each party is represented by his/her own attorney, but the parties and their respective counsel work as a team rather than as adversaries. The parties progress to reach their goal by arriving at a solution that is, to quote Judge Cooper, in the “best interests of all concerned.”

The difference, however, in using the Collaborative Process is that rather than having a judge make a decision for you, you work out an agreement together that suits you, your family and your pet. Communication is the key, and the Collaborative Process provides the means to reach an amicable resolution for co-parenting whether parenting children or precious family pets.

 

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