Court Decides in Whose Custody the Pet’s Best Interests Would Be Served
Pursuant to DRL §236(B)(5)(15), in awarding possession of a companion animal in a divorce action the court should consider the best interest of the animal. On April 18, 2023 a hearing was held to determine custody of the parties’ dog, King. Custody was sought by both William Conte and Teresa Conte.
The parties to the divorce action had been living apart since July 17, 2022 when William was directed to vacate the marital residence pursuant to an order of protection in favor of Teresa. At that time, the parties had two dogs: King and Ruby, a miniature Pinscher.
On April 11, 2018, the parties obtained King when he was 14 weeks old. William purchased King for $800 as a birthday gift for Teresa who testified that she always wanted a Doberman Pinscher. King was licensed and microchipped to Teresa. William commenced a divorce action on September 12, 2022. Both Ruby and King remained with Teresa in the former marital residence until September 16, 2022 when William went to the marital residence with a New York State Trooper and took possession of King. Unfortunately, Ruby died unexpectedly in December of 2022. Teresa only saw King, over William’s objection, after the Court ordered him to allow her to share time with King on Tuesdays and Thursdays from 7:30 a.m. to 12:30 p.m. with exchanges to take place at the Hyde Park Police Station.
William violated this court’s order twice by failing to bring King to the Hyde Park Police Station on March 21, 2023 and on April 18, 2023 at 7:30 a.m. Both were days when the parties were scheduled to appear before this court, at 10:15 a.m. and 11:00 a.m., respectively. William brought King to every court appearance and offered no excuse for failing to comply with the court’s order.
King appeared to be an obedient, happy, loving dog. It was obvious to the court that both parties loved King and that the petwas attached to both. However, it also appeared that Teresa was more aware of what was in King’s best interest and was more willing, when appropriate, to put King’s interest before her own. For example, while King was residing with Teresa at the former marital residence after the parties’ separation, she did allow King to spend time with William on at least two occasions. William, while equating his love for King to that for a child, had been unwilling to voluntarily share King with the wife, even at the court’s requests, thereby resulting in the court order made February 7, 2023 in open court. Even then, William violated that order twice. As of the hearing held April 18, 2023, William remained unwilling to let King visit with Teresa overnight, although he did offer to have King with her for two to three full days each week.
Neither party expressed any concern about King’s well-being while in the other’s care, with one exception. Teresa was concerned that William took King to crowded public places, such as to a bar or restaurant. While the court was not an expert on dogs, it seemed that exposure to crowds and noise and other distractions and/or disturbances created the potential for King to be injured or to become agitated. That was not in King’s best interest.
There were only two witnesses who testified at the hearing, that is both parties. William testified first, as follows. He is 59 years old. “[Teresa] is trying to take my service dog away from me.” King is a six year old service dog. William purchased him for $800 cash from someone who was working on the parties’ garage floor when King was 10 to 12 weeks old. The former marital residence is located at 54 Bella’s Way in Poughkeepsie. The parties have owned several dogs including Ruby, who was five years old when they got King. The parties went together to pick King up. At that time William had been retired for one year and testified that King never left his side. He testified that he trained him using a “vibration technique” and taught him to sit, stay, and get in the car. William then engaged a professional trainer. “Josh” from “Fearless Canine” came for two three-hour visits, first to evaluate if King could be a service dog, and second to work on discipline. The purpose of the service dog status was so they could take King everywhere with them. William testified that King had regular vet appointments and had to have surgery on his intestines approximately one and a half years ago; King got shots; he has been treated for Lyme disease; and that King is on a strict diet.
In evidence was a copy of King’s purported certification as a “service dog”. There was a QR code on this certification card which leads to a website for the Americans with Disabilities Act. As it relates to a service animal, the ADA specifically states that “service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
William testified that he had been seeing Dr. William Skojec, a psychologist, since 2017 or 2018. He did not provide responses to discovery made regarding his treatment with Dr. Skojec. William acknowledged that between the date of separation and when he took King from the marital residence in September, he saw King a few times. He testified that Ruby unexpectedly passed away in December. He testified he received the certified service dog identification card from the “American Dog Association” after submitting a letter from his therapist. The court could not locate the American Dog Association on the internet.
Also in evidence were 16 photographs of King at various indoor and outdoor locations, at play and at rest. William testified “I’m living on the streets”. That raised a concern about consistency in King’s life. William testified that the parties decided to have King professionally trained when they realized he had separation anxiety. He said King would look for them when King was left home without them.
William testified that it was Teresa who purchased the service vest that King wears, from the internet. When asked what proof he has that King is a service dog other than the card, William testified “I have documents somewhere.” He acknowledged that no such documents were produced in discovery even though they were demanded. He acknowledged that both he and his wife were dog lovers who loved King and enjoyed spending time with him and that King is attached to both of them. He did not testify as to any reason why King cannot be away from him overnight.
William testified that King was purchased in March of 2018 (Teresa’s birthday is April 1, but his testimony fell short of admitting that King was purchased for her as a birthday gift. He acknowledged that they went to see King together and decided together to bring him home. He acknowledged that he enjoys hunting and other outdoor activities and has been away overnight on several occasions to hunt and to look at property in Georgia, and that King stayed home either with Teresa or with the parties’ daughters for as long as one week at a time.
William was out of the marital residence for two months while King resided solely with the wife. William agreed that it was important for King to have a relationship with Teresa. Although he testified that “the dog is my life, when he is not with me I’m on the phone with my therapist four hours per day”, he was not able to provide any proof regarding that time with the therapist. He testified “he is my therapy dog” but that he would be okay with Teresa having King two to three full days each week. According to William, a therapy dog and a service dog were the same. As to his disability, William testified that he had spinal, neck, hip and shoulder injuries, all work related “occupational disease”. He was a union electrician.
Teresa testified that King was a birthday gift to her at 14 weeks old on April 11, 2018. There was a laborer at their house who told them that he had a puppy available for purchase. William said “let’s go see him and I’ll get him for your birthday.” Teresa testified that she told the husband that if she ever got her dream dog, a Doberman Pinscher, she would name him King. Teresa posted on Facebook that William gave her King as a birthday present. She testified that King’s adjustment to their home and to Ruby were fine; King ate, drank and played like a normal happy puppy; and both parties played with him. She testified that she was the primary person who cared for King taking him for vaccines, taking him to the vet when he didn’t feel well, taking him for a CT scan, for his surgery for the block in his intestines, picking him up, sleeping with him downstairs for several nights because he couldn’t go upstairs after his surgery—and that William did not get involved in any of that. She testified that William only took King to the vet one or two times and that she paid for the surgery bill. She testified that King was soon back to his normal self and his normal diet and was “free fed”, and that he ate normally between July 17, 2022 when William was out of the marital residence until he retrieved King September 16, 2022.
Teresa testified that King had never nipped at or bitten anyone but had growled several times including when children were teasing him outside of a store, at someone in “Tractor Supply” who came around into their aisle, and on one occasion King growled William and he hit King with a closed fist in the thigh. Teresa described the two training sessions as brief, one and a half hours each, the first for an assessment and the second for training King only about sitting and staying. She testified that to her knowledge William never told the trainer that he had a disability. Teresa said the training took place when King was two and a half to three years old. She was not aware of any training King had had to address any disability of William. Teresa testified that King was absolutely not qualified as a service dog.
Teresa testified that William went to Oneonta each year for Thanksgiving week and King stayed with her during those times for all the years it occurred which was from when they got King until September of 2022. They went to Georgia for a week to look at houses and King stayed home with their two daughters. Teresa testified that both King and William were fine during these separations.
On July 17, 2022 Teresa obtained an order of protection against William from the Dutchess County Family Court and William had to move out. King remained with her until September 16, 2022. She did let William see King on two separate occasions, once when King went with their daughter to visit William and another time when King spent a weekend with William in Oneonta. She testified that King was very important to both parties; they both loved King very much; and King loved both of them.
Teresa testified that from September 16, 2022 until February 9, 2023 she did not share any time with King. It was only due to this court’s order of February 7, 2023, made over Williams’s objection, that she was finally able to spend time with King. Teresa discussed the two incidents when William failed to show up at the Hyde Park Police Station with King.
Twelve photographs of King depicted him, as Teresa described, as a “good, happy, playful, loving dog”. Teresa testified that she works 12 to 15 hours per week for a tax preparer, Mondays, Fridays and Saturdays from 9:30 a.m. until 2:00 or 2:30 p.m. and that she does not work Tuesdays, Wednesdays, Thursdays or Sundays. Teresa asked this court to grant her time with King from Tuesday mornings at 7:30 through Friday mornings at 7:30 (including overnights) with exchanges at the Hyde Park Police Department. That would also reduce the number of exchanges from four to two.
Teresa testified that it was William who purchased the vest that states that King is a service dog, in 2020, and that she had nothing to do with it. She testified she was present on many occasions when they went out with King with the vest on. Teresa testified that she objected to King wearing that vest as she did not believe he was a service dog. Teresa described the two orders of protection, one which remained in place for up to two years, one from the Hyde Park Police Department where William pled to disorderly conduct, and the other from the Dutchess County Family Court which order was entered following William’s default in that case. Teresa acknowledged that the marital residence would be sold in the divorce.
Also in evidence were two photographs of Facebook posts about King as a birthday gift to Teresa from William. She testified that King was licensed and microchipped to her and she had serious concerns about King being in crowded places, such as bars or restaurants, with William. She was concerned that King might become agitated to the point where he could bite someone in which case not only could King’s life be at risk but she could be sued.
Based upon New York State law and the Americans with Disabilities Act, the Court found that King was not a service dog as defined by those statutes. But the Court did not find that relevant to the determination of custody and timesharing of King other than with respect to consideration of separating King and William overnight. The Court had been given no proof of any disability on behalf of William that would preclude Teresa spending time with King overnight nor that would demonstrate a detriment to William or King if they were separated overnight.
In determining the best interests of a companion animal under DRL §236(B)(5)(15), the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive.
The Court found that both parties had been involved Ing King’s life, although Teresa had been more involved in his medical care. Both parties were available and willing to care for King. And William testified that he was retired and was always available.There was no question that Teresa’s home environment was of better quality and was more stable, based upon William’s characterization of his living arrangements as transient. However, both parties’ living arrangements were temporary since the marital residence would likely be sold. While Teresa’s testimony that Willaim hit King was troubling, as was his apparent anger at having to turn King over to Teresa in court on March 21, 2023 when he ripped the service vest off of King and threw the leash to Teresa’s attorney, the Court gave William the benefit of the doubt and found that that behavior appeared to be aberrational, especially since Teresa was not concerned about William’s treatment of King.
The Court found that, as the individual to whom King was licensed and microchipped, Teresa was the owner and primary caretaker of King. But the Court was not put in the position of having to choose between William and Teresa as King’s sole physical custodian. Instead, the Court awarded the time-sharing schedule requested by Teresa which the Court found was in King’s best interest and which seemed the fairest solution to timesharing between William and Teresa who both obviously loved King.