It’s the kind of case that would have made the Dog Whisperer scream. A divorcing couple in Canada petitioned Justice Richard Danyliuk of the Queen’s Bench for Saskatchewan to render a custody decision and visitation rights for their three dogs. Rather than entertain the idea of equating dogs with people, Danyliuk responded with 15+ page decision outlining all the reasons for treating a dog like property rather than a member of the family.

Although Danyliuk recognized that many people do treat dogs like children, he vehemently reminded the petitioners that under the law, dogs are domesticated animals governed by property rights rather than familial rights. He cited other opinions that acknowledged pets can require humane treatment while still having the legal status of property, even though you wouldn’t require similar treatment for a set of “butter knives”. The entire opinion suggested that Justice Danyliuk felt this case never should have been brought to court and that similar cases should be discouraged.

American law considers pets a “special kind of property” because it recognizes that people form emotional attachments to these living creatures that are not formed for other pieces of property. Pets are considered unique in a New Jersey divorce and typically not subjected to determinations of mere monetary compensation. Rather, a judge will decide which divorcing spouse should keep the pet in New Jersey by considering facts such as:

• Who spent more time with the pet before the divorce and has a greater bond with it (while this may seem like a “best interests” test, NJ courts have been clearly opposed to such an application to pets, see Houseman v. Dare below)
• Who will retain custody of any children (often the pets go with that spouse)
• Who provided primary care for the pet (food, habitation, vet visits, etc.)

New Jersey courts have recognized the difficulty in determining who keeps the dog after a breakup. Houseman v. Dare (2009) involved a case where a couple bought a Golden Retriever while dating, raised it for many years together, and then broke up. Houseman then took a vacation and left the dog with her former boyfriend, Dare, whom the dog knew. When Houseman returned from vacation, Dare refused to give the dog back, and Houseman took him to court. The trial court awarded Houseman $1,500 to compensate her for the value of the dog, but left the dog in Dare’s possession. The Appellate court found this remedy insufficient and remanded the case to be judged under the contract law principle of specific performance, because of the oral promise made by Dare to Houseman. On remand, the trial court held the dog to be property that could be shared in joint possession by the parties.

Furthermore, in New Jersey, lawmakers have recognized that pets are a special kind of property. The Legislature passed the Domestic Violence Pet Protection Order Act, which authorizes courts to include pets in domestic violence restraining orders.  Extending these protections to pets means that victims will be able to seek help without worrying about their animals’ welfare. 

If you are divorcing or considering it, you should get the benefit of experienced and compassionate legal advice, seeking to help you navigate issues from custody, parenting time, child support, alimony, equitable distribution (including pets), and counsel fees. We will provide you with special care during this difficult time. We are Central Jersey’s compassionate counsel and tough advocates. Call Hanan M. Isaacs, P.C., at 609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced rate. You will be glad you did.