Pet Custody Takes Shape in New York
In 2021, when Governor Kathy Hochul signed into law what is now the fifteenth equitable distribution factor in Section 236 of the Domestic Relations Law—requiring matrimonial judges across this state to consider the “best interest” of a “companion animal” when “awarding” its possession to a party—divorce lawyers naturally questioned how on God’s green earth a Judge would determine what is in the “best interest” of a dog, cat, or any other “companion” animal.
Thankfully, we now have some decisions of interest to turn to which can help us begin to provide our clients with guidance on how their companion animal disputes might be adjudicated by a New York court.
That brings us to Justice Lourdes M. Ventura’s recent decision in Acosta v. Shaw (NYLJ, 2/21/23, Case No. 71730/2020). Justice Ventura’s decision is, at a minimum, a primer on the factors a court might consider if you find yourself in the middle of a companion animal dispute. The decision is detailed, thoughtful, sensitive and balanced. In short, it is what a decision after trial should be.
Acosta v. Shaw tells us the story of what happened when Kyle Shaw took possession of a dog that he and his then girlfriend owned—“Waffles”—and allegedly refused to return him. It is not a matrimonial case. However, the decision borrows from matrimonial law to determine the outcome.
Specifically, Amanda Acosta filed an action to recover possession of Waffles and damages totaling $1,000. A hearing was conducted to determine custody of Waffles.
The parties began living together in 2015. A series of emotional experiences led the parties to acquire Waffles, including the death of Acosta’s pet rabbit (“Lola”). The decision recounts other personal events in the life of Acosta, which, though intentionally not reproduced here, help explain just how meaningful it was to her to acquire Waffles.
When the parties broke up in 2019, Shaw moved out, without Waffles. Later in 2019, Shaw moved back in with Acosta after their grandmothers died on the exact same day—an event that “brought them back together.”
But in March 2020, Shaw moved out for good. In August 2020, Shaw picked up Waffles from Acosta, and never returned him. The parties exchanged text messages on how to devise an access schedule, but they did not reach any agreement.
Acosta testified that her ex refused to return Waffles, had not seen him since August 2020, and was “heartbroken.” Acosta acquired a second French bulldog (“Gigi”) from the same breeder that bred Waffles. Acosta testified that she “believes Gigi misses [Waffles]…Gigi would sit by the door as if she was waiting for Waffles to come by but she does not do that anymore.”
Acosta also testified that she didn’t believe Shaw could provide adequate companionship because “when they dated she noticed [] Shaw didn’t go to the doctor or dentist and didn’t even have insurance for himself.”
Shaw testified that his new life at a house in Queens (post-breakup) was better for Waffles; “when Waffles was in the city, Waffles was confined to the apartment on the 11th floor, was alone the majority of the time, and was sleepy and lethargic.” During his city life, Waffles “did not do his business outside and would wait to hold it to come back inside and use Wee-Wee pads.” The decision’s description of Shaw’s testimony also notes that “It is well known dogs can indeed suffer from separation anxiety and stress, as per the American Kennel Club, and suffer an array of symptoms and relocation and separation, at this time would be unnecessarily cruel.”
Justice Ventura explained that while the court was aware that the complaint involved “causes of actions grounded in replevin and right of possession, which is distinguishable from divorce and separation proceedings, this Court would be remiss if it did not acknowledge that a determination regarding the custody of a pet, whether between two married persons or two previously co-habiting persons, should inherently consider the best interest of said animal.”
With that in mind, Ventura determined that it was in Waffles’ best interest to remain with Shaw, because: Shaw “paid for Waffles”; monthly expenses were “shared between the parties during their time living together”; the parties “shared the walking responsibilities” when they lived together; it was undisputed that Waffles lived with Shaw since August 2020; no evidence was “adduced to controvert” Shaw’s “account of Waffles’ current daily routine or care”; and Waffles “resides on a first floor of a duplex style house which has direct access to a backyard.”
All of this makes sense, except for one thing: did Shaw not steal Waffles? I can only hope that divorce litigants involved in pet disputes do not resort to self-help.
Shaw’s testimony indicated that he had spent two years trying to set up visitation and offered to reach a financial settlement (Shaw admitted that a text message he sent to Acosta stating “this might as well be full blown war” referred to “this legal battle that has taken two years of his life”). Shaw was pro se, whereas Acosta had counsel.
Perhaps the court in Acosta v. Shaw determined that enough is enough, as in, while Shaw’s conduct may not have been appropriate, Acosta’s refusal to reach a good-faith settlement and instead battle it out in the courts for two years may have been more egregious. That is, at least, the sense one can get from reading Acosta v. Shaw.
Alternatively, in the case of Waffles, perhaps the fact that two years passed during the proceeding was outcome determinative. If courts cannot expedite hearings, at least in the case of companion animal disputes, does the backlog help the party who has possession of the animal, i.e. is possession not just 9/10th, but in fact, 10/10th of the law when determining what is in the best interest of a pet?
Speaking of backlogs, the extensive lag time in obtaining signed, and then entered, Judgments of Divorce in New York has become nothing short of unbelievable. One has to wonder the magnitude of judicial resources that are now being used, and will continue to be used, on disputes over Waffles and the like. I recognize that there is likely no equivalency between the two, and as a dog owner myself I sympathize with the decision to treat pets as more than plain vanilla personal property such as sofas and steak knives.
That said, in reading Acosta v. Shaw, one wishes that our Legislature would do more for our courts in terms of providing adequate funding, resources and a sufficient volume of court personnel to more expeditiously service the human population that passes through the halls of justice day in and day out.
“Pet Custody Takes Shape in New York,” by Alan Feigenbaum was published in the New York Law Journal on March 27, 2023.
Reprinted with permission from the March 27, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.