Who gets the dog? Determining pet ownership in a New York State divorce

As we approach National Pet Day 2025, the Colwell Law Group recognizes that many of our clients have emotional bonds to their pets that take priority over material interests. Luckily, New York State recognizes the same, and provides statutory instruction for determining the custody of a pet during the pendency of divorce proceedings, with the New York State Senate having reasoned that “[f]or 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.”

In New York, the custody of pets is determined through the guidance of Domestic Relations Law § 236 and its provisions regarding the equitable distribution of marital property when considering the circumstances of the parties and their separation. Specifically, the statute states, “in awarding the possession of a companion animal, the court shall consider the best interests of such animal.” Domestic Relations Law § 236 (B) (5) (d) (15). New York State defines “companion animal” or “pet” as “any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal,” but does not include farm animals. Agriculture and Markets Law § 350.

However, it remains up to the court to ascertain what factors must be considered in determining the best interests of a companion animal. One of the first cases to interpret the statute was L.B. v. C.C.B. out of Kings County. L.B. v. C.C.B., 77 Misc. 3d 429 (2022). In its opinion, the Court explained, “[i]n determining the best interests of a companion animal…the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal…No single factor is dispositive.” The Court gave an inexhaustive list of factors it may consider, including:

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

Since then, Courts have expounded on this list to include consideration of:

• Claims toward general ownership of the animal
• Each party’s ability to meet the physical and emotional needs of the animal
• The financial circumstances of the parties
• Access to outdoor environments and activities
• Opportunities for exercise and socialization
• Access to veterinary care and necessary medical supplements
• The time required to meet the animal’s needs on a daily basis and
• The reasons why each party would benefit from having the animal in their life. Connolly v. Nina (2024).

With the expanding recognition of the rights of animals beyond just possessions, it is important to note that the Courts have continued to decline to treat animal custody in quite the same way as the custody of a child. Specifically, judges have generally stopped short of ordering any custodial or visitation schedule with respect to companion animals, opting to instead award simple and sole possession to one party alone.

This does not mean, however, that creative solutions regarding the care and custody of a companion animal are impossible. In fact, retaining an attorney and settling a divorce upon agreement can help avoid the pain of such a black and white order by allowing you and the opposing party to create a schedule or arrangement that is in the best interests of everyone: humans and pets alike. Luckily, the attorneys at the Colwell Law Group, LLC, are uniquely well-equipped to help usher you through the process of divorce and the uncertainties of the legal system, all while considering the most beloved members of your family