New Jersey Pet Custody

Whenever a couple faces a divorce or separation in New Jersey, there are always going to be complications and difficulties. Couples that are deciding to go their separate ways have to make decisions on dividing their assets, property, child custody, spousal support, and much more. With all these difficult decisions, there is often one decision that is overlooked and often not considered, and that is who keeps the family pet.

When you bring your new fur baby into your home, you treat it as a member of the family. As such, couples that are divorcing must add to their list of decisions which individual will have custody of the pet and what that custody will look like. However, a newer concept in the area of family law, the laws that pertain to and govern animals, are ever-changing and adapting.

Right now, pets are considered personal property. Yes, that means they are seen the same as the silverware in your drawer, but there are still laws that can have a significant impact on how the decision about the family pet is made.

Pet Custody History and Laws

As mentioned, pets are considered personal property, particularly in New Jersey. That means that they will be negotiated for and a part of the asset-division discussion that a couple will have. However, the last several years have seen pushes for further legal considerations that will help govern decisions about pets in divorces. Some of these include:

A 2017 Alaskan law that required divorcing couples to establish a clear difference between animals and personal property. Under the law, many of the protections that are considered when discussing children (domestic violence, for example) are considered for the family pet as well. They would be covered under protective orders, and orders of custody would be granted.
A 2018 law in Illinois was modeled after the Alaskan law and allowed for sole or joint custody of an animal based on the same criteria that are established for children. It considers what is in the best interests of the pet.

Even though pet custody cases are on the rise, every state approaches such topics differently. While more and more states look to create laws modeled after Alaska and Illinois, the bottom line is that pets are assigned a monetary value. They are seen as an asset and, therefore, a bargaining tool when dividing the assets of the divorcing couple.

Factors to Determine Pet Custody

Although they are seen as property in New Jersey, there are some factors that can help in determining with whom the pet should live. Just as in any debatable divorce matter, showing evidence and rationale for who should remain the animal’s owner. However, if an agreement is unable to be reached, a judge can make the decision on behalf of the couple using the following considerations:

The individual that owned the pet prior to the beginning of the relationship.
The individual that spends more time bonding with the pet.
The individual that is considered the primary caretaker of the animal. This could include arranging vet visits, supplying food, playing with, or walking the animal, etc.
Adequate space for the animal wherever they will live.
Because of the compassion and coping abilities of animals, they may be awarded to the parent who also has custody of the children because it is in the best interest of the children.

Pet Parenting Plans

Because many divorce cases in New Jersey end up settling without the need for litigation, creating a pet parenting plan, as you would for a child, is an easy solution to helping couples decide the future of the animal. Many couples will go through a mediation process to help solve their disagreements and make decisions that finalize the divorce. The negotiation for the pet can take place in the same format.

Establishing a pet parenting plan can minimally include the following:

Establish who the primary caregiver will be
Define the parameters of visitation
Discuss finances for pet care, including food and vet visits
If the pet will go between homes, create agreements for feeding schedules and other routines to keep the pet consistent

Disputing Pet Custody

Once a pet parenting agreement is reached, or if the pet becomes a part of the litigation process of a divorce, then it is followed when the divorce is finalized. However, circumstances may change for the spouse who has custody, or individuals may change their minds and want the pet in their care.

Pet custody cases have become more and more subjective. Without clear law, it is left to the discretion of a judge. Because of that, there are some jurisdictions that will grant visitation rights for the spouse who is not granted “custody” during the finalization of the divorce. These types of decisions make it clear that if you are unhappy with the living arrangements of your family pet, you can challenge it in court. But, because of the laws, there is no guarantee that they will be supported or changed. The best option is to try and negotiate with your ex-spouse on any custody challenges you wish to pursue.

Preventative Custody Disagreements

Like any relationship, no one enters them with the anticipation of that relationship ending. If you are entering a relationship with your beloved furry family member, you may wish to consider setting the parameters of custody when you know the relationship is progressing toward something more long-term. This can be done in a prenuptial agreement or a cohabitation agreement which can set the guidelines from the onset.

Additionally, if you are in the midst of a divorce process, you may have to allow for concessions of pet custody in order to obtain other assets or give other assets. In other words, your pet becomes a bargaining tool in the divorce amongst other assets you own. This can make the process difficult because your pet is not just property to you but is a member of your family. You wouldn’t use your children to bargain with. However, because the law has not set rules, you should expect this to be a part of the negotiation process. If you anticipate the conversation, you can amicably resolve the ownership and continue to move forward.

Before entering the negotiation process, you will want to collect evidence to help your case. This could include documenting the relationship you have with your pet, including the time you spend with it, how much you play together, how often you provide direct care, etc. If you could also provide any witness statements or evidence that proves the bond you have with your pet, that can also help your cause in the negotiation process. After all, because your pet is not just property, its feelings and “voice” matter too.

Case Law for Pet Custody

While New Jersey has not yet changed its laws, there have been instances where pets were at the center of a dispute. One of the most prominent cases occurred in 2009 in Housman vs. Dare. In this case, an engaged couple owned a dog and a home. When the couple broke up, they verbally agreed to let the wife keep the dog while the husband bought out her portion of the home.

A year later, she went on vacation, and he kept the dog while she was away. When she returned home, he refused to return the dog to her. This led to litigation in court. However, she was unsuccessful at having the dog returned, and instead, he was allowed to keep the dog but had to pay her for the original cost of the dog.

She appealed the decision, and the case was reviewed again. In the end, the court made an arrangement that allowed for joint custody where the dog would switch between their homes every five weeks. This decision began the process of courts viewing divorce cases involving pets differently. The case set several precedents for New Jersey litigation, including:

Although pets are considered personal property, they also have a sentimental value that must be attached that is monetarily immeasurable.
Because the initial agreement for her keeping the dog was verbal, it constituted a contract. Even though there are decisions claimed to be in the best interest of the pet, the decisions are actually based on agreements of ownership.
New Jersey courts can order custody agreements for family pets for separating couples, including possession and visitation.