Canine Custody is Alive and Well in New Jersey

May 3, 2009 HealthNewsDigest

© May 2009, HealthNewsDigest.

A New Jersey appellate court has held in a canine custody dispute that a dog is not merely property, but rather a unique possession that can be the subject of an order compelling the pooch’s return. Anyone who owns a dog, already knows this. Unfortunately, the law has been slow to adjust to the special relationship all pet owners have with their pets. In fact, some people will fight more over custody of their pet in a divorce rather than over other members of the family. In Houseman v. Dare, decided March 10, 2009, the New Jersey Superior Court, Appellate Division, ruled that although pets are personal property, they possess unique value and the courts can enforce an agreement concerning custody or ownership. Doreen Houseman and Eric Dare were engaged to be married. They jointly owned a house and a dog, the latter of which was purchased for $1,500. The couple split up. There was no problem selling the jointly owned house and splitting the proceeds. On the other hand, the pooch was a different story. Although Doreen took possession of the dog pursuant to a verbal agreement that she could “have” the dog, she dropped off Fido (the name has been changed to protect the innocent) to stay with Eric when she went on vacation. When Doreen returned from vacation, Eric refused to return Fido to Doreen. Doreen sued Eric seeking to enforce the agreement giving her the dog and sought a court order compelling Eric to return the dog. The trial court refused to order Fido’s return. The trial judge held that, although Doreen owned the dog, Fido was simply property worth $1,500 and ordered Eric to pay Doreen the value of the dog. Doreen appealed this harsh ruling.

The appellate court reversed and recognized that, although a dog is “property”, it is unique property, such as other possessions and property with sentimental or other non-monetary value, that can be the subject of an order compelling its return. The appellate court recognized the special “subjective value” of pets to their owners. However, the New Jersey court did not go so far as to hold that the “best interests” of the dog should be considered by the courts in determining custody of a jointly owned pet, as it is for children.

Pennsylvania, on the other hand is not so pet friendly. Pennsylvania courts follow the traditional “property” analysis in what has become known as the “Barney Rule.” In a 2002 opinion, the Pennsylvania appellate court, in the case of DeSanctis v. Pritchard, refused to enforce a written settlement agreement entered as part of a divorce that granted ownership and custody of the couple’s dog “Barney” to the wife. However, the agreement also specifically provided visitation rights to the husband. When the former wife moved away, the former husband sought joint custody and visitation of Barney. The court rejected what it saw as the husband’s attempt to treat Barney as if he was a child. Both the trial and appellate court dismissed the case holding that the situation was “analogous, in law, to [seeking] a visitation schedule for a table or a lamp.” [Ouch!]. The Pennsylvania Supreme Court refused to hear the case.

With the proliferation of pets and their enhanced status within the home, it is not surprising that these types of cases will continue to come before judges. On one extreme, are a handful of cases that literally seek to determine the best interest of the “pet” in deciding ownership and custody issues. On the other extreme are jurisdictions such as Pennsylvania that take the more traditional view of pets as “property”. In the middle are many states like New Jersey that attempt to recognize the special status pets play in the fabric of our families. The law will continue to evolve to reflect these societal and cultural changes.

Ron Shaffer is a partner in the Business Litigation Department of Fox Rothschild, LLP and the owner of two Golden Retrievers.

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