Travis v. Murray, 2013 NY Slip Op 23405 - 42 Misc. 3d 447, 977 N.Y.S.2d 621 (Sup. Ct.)

Rule:

The opinion by the First Department in Raymond v. Lachmann is significant for both what it does and does not do. The decision is a clear statement that the concept of a household pet being mere property is outmoded. Consequently, it employs a new perspective for determining possession and ownership of a pet, one that differs 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 the pet's well-being and the special relationship that existed between the pet and the person with whom the pet was living. In making its determination to keep the pet 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.

Facts:

Before plaintiff and defendant were married, plaintiff bought Joey, a 2½-year-old miniature dachshund, from a pet store. Subsequently, 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 where Joey was but then later claimed that she had lost him while walking in Central Park. Plaintiff filed for divorce. Thereafter, plaintiff brought the present motion, seeking not only an order requiring defendant to return Joey to her, but also an order awarding her what she termed as "sole residential custody" of the dog. Plaintiff argued that Joey was her property because she bought him with her own funds prior to the marriage.

Issue:

In determining to whom the pet should be awarded, should the court employ the traditional property analysis? 

Answer:

No.

Conclusion:

A one-day hearing was ordered to determine, by the application of a "best for all concerned" standard, which spouse would have final possession of the dog. The concept of a household pet being mere property is outmoded. In a case such as the one here, where two spouses are battling over a dog they once possessed and raised together, a strict property analysis was neither desirable nor appropriate. Although the parties' dog was not a human being and could not be treated as such, he was decidedly more than a piece of property, marital or otherwise. In determining to whom the pet should be awarded, a "best for all concerned," rather than a "best interests," standard would be appropriate. In accordance with that standard, each side would have the opportunity to prove not only why she would benefit from having the dog in her life, but why the dog had a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other.