Who (Will) Let the Dogs Out?

by Mike DeBlasi | April 30, 2019 10:20 am

While many people now pamper their pets like human children, dogs are considered property in New Hampshire—a holdover from the days when many citizens’ most important property was livestock. As our economy transitioned, so did the role animals play in our lives. Instead of our animals being a source of livelihood, for many of our citizens, the animals in our lives are a source of joy, comfort, and companionship. Our laws governing animal ownership, however, have not similarly evolved, leaving the question of pet custody, somewhat unanswered.

The reality is that cats and dogs are not property in the same way as a dining room table. While the strict letter of the law might treat them as such, judges, who also often have beloved pets, may not. New Hampshire courts have considered factors not specifically delineated in the property division statute when allocating pets between divorcing parties, such as the primary caretaker of a pet and which party paid the costs of caring for the pet.

Other jurisdictions have gone even further, explicitly considering the interests of the pets. Tennessee has considered the needs and abilities of the parties to care for the pets. New York has applied a “best for all concerned” standard, which looks at the effect of post-divorce ownership on the pet, the party maintaining custody, and the party losing custody. Notably, however, New York stopped short of applying the same standard to pets as it does for children, the “best interests of the child” or the comparable “best interests of the dog” standard.

A new pet custody law in Illinois took effect on January 1st of this year. Judges in Illinois must now consider the pet’s well-being when awarding ownership of the family pet. One consequence of this change is that, just like with child custody, it might be in the pet’s “well-being” for the divorcing parties to share custody following the divorce.

In New Hampshire, however, joint custody of a pet arguably conflicts with the established goal of divorce—the final and equitable distribution of property. Unlike the final property distributions of dining room tables, lamps, and retirement accounts, continuing obligations related to joint custody of children or child support obligations create additional burdens on our court system to navigate the complex emotional and financial disputes between divorced parties. Our society has concluded that this is a worthy obligation because it is in the best interests of our children. Joint custody of pets would almost assuredly add a similar burden on our courts. Illinois’ legislature endorsed such an obligation with their recent law and New Hampshire courts, by considering factors outside of those listed in the property division statute, seem to be doing the same.

As the strong emotional bonds between divorcing couples and their “fur babies” continue to create obstacles to the settlements of divorces, New Hampshire will continue to grapple with the decision of whether to treat pets like children, like dining room tables, or somewhere in between. For now, pets are treated as somewhere in between.

About the Author: Nat Morse

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