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Navigating Pet Custody in New York

businessman holding cat

When couples divorce, the division of property can be contentious. While this division is usually centered around real estate, bank accounts, and investments, there is another deeply emotional and increasingly common area of contention: pet custody.

In New York, historically pets were considered personal property under the law, similar to furniture or cars. This classification meant that during a divorce, pets were subject to equitable distribution, much like any other asset. However, this approach often ignored the deep emotional attachment between pets and their owners.

Recognizing the unique status of pets in families, the treatment of pets in divorce has evolved and New York courts have started to shift towards a more nuanced approach. Now, pets in a divorce are treated more similarly to children than dining room chairs. This shift became more pronounced with the passage of legislation that guides judges to consider the “best interests of the pet” when making pet custody decisions. In its justification for the bill, the New York legislature reasoned, “For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce” (NY Committee Report, 2021 NY Senate Bill No. 4248 [Feb. 6, 2021]).

In determining pet custody, New York judges consider various factors to decide what arrangement serves the pet's best interests. These factors include:

  1. The involvement, or absence, of each party in the companion animal's day-to-day life;
  2. The availability and willingness of each party to care for the companion animal;
  3. Each party's involvement in health and veterinary care decisions;
  4. The quality of each party's respective home environment;
  5. The care and affection shown towards the companion animal; and
  6. Each party's fitness and caretaking abilities.

No single factor is dispositive, rather they are reviewed based upon the totality of the circumstances.

Out of court, there are various creative ways to address pet custody that allow both parties to remain in the pet’s life. Frequently, couples arrive at a time-sharing agreement where they delineate when each party will be with the pet, taking into account their respective work schedules and ability to be home with the pet. These agreements may include a “right of first refusal,” requiring that each party offer the other party time with the pet before making arrangements for third-party care when they are not available to care for the pet themselves. These agreements also often account for the sharing of pet expenses including regular expenses such as food and grooming, and irregular expenses such as an unexpected vet bill.

Unlike custody of children, potential pet custody issues can be preemptively addressed through prenuptial or postnuptial agreements by including specific provisions in such agreements regarding the care and custody of pets in the event of a separation.

As pets become increasingly integral to family life, New York's legal system is adapting to acknowledge their significance as family members. For pet owners facing separation, understanding these evolving legal standards and considering all available options can help ensure that their furry friends continue to thrive in a loving environment, even after the humans in their lives go their separate ways.

Samantha Cooper is an attorney with Berkman Bottger Newman & Schein LLP and represents clients in all aspects of their divorce, including pet custody. To schedule a consultation, please email samantha at, call (212) 867-9123 or reach out to us through our contact form today. We maintain offices in Manhattan, in Westchester, and Long Island.

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