Pet Custody in a New Jersey Divorce
Who Keeps the Dog?
Pet owners going through a New Jersey divorce are often dismayed to learn that their beloved pet, whom they consider a member of the family, will be treated no differently from a piece of furniture or a painting on the wall. In fact, the same is true for divorcing couples throughout the USA.
Although pets are considered property by the family courts when dealing with marital settlements, more and more states are reconsidering how animals should be treated in divorce and separation cases. Alaska recently became the first state to enact pet-custody legislation. The amendment, which went into effect in January 2017, requires the court to distinguish between pets (vertebrates only!) and other property in two ways:
- The court must consider the animal’s well-being.
- The judge may award joint custody.
Of course, family court judges in any state can consider an animal’s well-being when deciding which party should get the pet; however, it is left up to the judge’s discretion and is not mandatory.
Other states are now considering legislation that amends the way animals are treated in cases of divorce. Will New Jersey divorce law be amended? Only time will tell.
New Jersey Marital Settlement Agreements and Pet Custody
Results from a survey conducted by the American Academy of Matrimonial Lawyers showed that there was a 27% increase in “pet custody” cases in the five years prior to the survey.
More and more divorcing couples want pet custody as part of their New Jersey marital settlement agreement.
Out of Court New Jersey Marital Settlements
Most divorce cases are settled out of court. If a couple is able to come to an amicable agreement through negotiation or mediation, then the parties can create any mutually satisfactory arrangement regarding the custody of their pet.
Factors Considered by Court
If one spouse owned the pet before the marriage, then the court might consider the animal separate property, not subject to equitable distribution. This would be an important factor in the judge’s decision.
The judge will want to know which spouse has had more responsibility for the pet’s care, such as feeding, walking, grooming, and taking the animal to the vet.
The court might also consider who has been paying the bills pertaining to the pet’s care.
Another factor in the judge’s determination will be whether either spouse would be unable to continue caring for the animal.
Last, but not least, the judge will consider the feelings of any children involved. If a child has a deep attachment for the animal, the court will probably give the pet to the parent who will have custody of the child.
Passaic County Judge Opines on the Relationship Between The Best Interests of the Child and Pet Custody
New Jersey family law requires family courts to always put the best interests of the child first. In a statement quoted in a September 2015 article in the Bergen Record, Passaic County Judge Ernest M. Caposela stated the following: “What’s in the best interest of the child may include custody of the pet.”
New Jersey Case Dealing with Pet Custody
A 2009 case—Houseman v. Dare—set a pet-custody precedent in New Jersey. The case involved a couple who bought a dog for $1,500 while dating. The couple lived together but later broke up. The woman, Doreen Houseman, kept the dog. When she went on vacation a few months later, Doreen left the animal with her ex-fiancé, Eric Dare, with the verbal understanding that he would give back the dog when she returned.
Mr. Dare refused to give Ms. Houseman the dog, and Ms. Houseman filed suit in the Superior Court of New Jersey, Family Part, of Gloucester County.
The trial judge awarded Ms. Houseman $1,500, but she did not want the money—she wanted the dog! Therefore, she appealed the decision, and the case went to the Appellate Court of New Jersey.
Appellate Court’s Decision
The appellate court agreed with Ms. Houseman that the monetary award was not enough to compensate her for her loss. It held that although the animal must be considered property, it should be distinguished from other forms of property because of its “unique sentimental value.”
The case was remanded back to the trial court.
Trial Court Reverses Its Decision
The trial court reversed its decision and ruled that the two parties should have joint possession of that property.
Importance of That Decision
Legally, there is no such thing as “pet custody” in New Jersey divorce cases. Houseman v. Dare did not change the fact that pets remain property according to New Jersey law. The case did, however, establish the precedent that New Jersey courts should consider the “special subjective value” of pets to their owners when deciding who will get the animal.
As a result of this decision, judges are able to hear arguments that contend that because the pet has “unique sentimental value,” a monetary award is not sufficient compensation. Also, the court can order a shared possession order.
Litigating pet custody has become more and more common in New Jersey divorce cases. One way to avoid contentious battles regarding pet custody is to include the issue in a prenuptial agreement.
Contact a New Jersey Divorce and Family Law Attorney
If you have a question about pet custody in divorce, you should contact a New Jersey divorce lawyer who understands that your pet is more important to you than a painting on the wall. It is important to have an advocate who will fight vigorously to ensure that the best interests of your children and the well-being of your pet are given the proper consideration.
The NJ divorce and family law attorneys at Aretsky Law Group, P.C., are experienced in drafting prenuptial, post-marital, and other documents and are skilled in both negotiation and litigation.
Call us 24/7 at 1-800-537-4154.