Risa A. Kleiner, Esq.

September 25, 2009

There is an old courthouse joke about how the court decides who gets the dog in a divorce.  Urban myth has it that the judge in this case directed the parties to bring the dog to court.  Placing the dog in the middle of the courtroom, the judge told each party to call the dog and promised that whichever party the dog chose, would be able to keep the dog.  So, each party called out to the dog, urging her to come to them.  The dog remains motionless for a moment — and then, what does the dog do?   Yes — you guessed it — the dog runs straight to the Judge.  

That story may now be put to rest following a groundbreaking ruling by the Appellate Division last March which changed the way pets are treated in the Family courts of New Jersey.   No longer seen as mere “furniture”, the issue of who shall retain a pet after the break-up of the parties who shared him or her, is now worth the court’s consideration. 

This week, a Gloucester county trial court ruled that the two unmarried parties who jointly purchased a dog for $1500 during their 13 year cohabitation, shall share possession of him on a five-week rotating basis.

At the initial trial, the Judge had denied a request that the parties’ six year old pedigreed dog be returned to one of the parties.  The court had held that pets were more like furniture, antiques or other possessions and that they lack the “unique value” that would permit the court to order that they be returned to one of the parties.  Instead, the court only addressed the $1,500 purchase price.  On appeal, this decision was overturned and sent back to the trial court for further proceedings.

Following a hearing and the submission of briefs, the trial court again reviewed the issue.  The appellate court had directed the trial judge to determine whether the parties had reached an oral agreement as to Dexter’s possessions and to consider what was equitable and fair under the circumstances.

This time, the court awarded joint “possession” of Dexter to the couple in five-week rotations.    Each party was directed to pay the expenses for the dog while in their possession, including the cost of cremation if Dexter dies while with them.  While the trial judge refused to order either party to notify the other if Dexter was hurt or ill or has to be euthanized, he did suggest that whomever had the dog cremated would share the ashes.

While the judge emphasized that he was awarding “possession” not “custody”, this was clearly a recognition that pets are far more valuable than their purchase price (here, $1,500).