When couples that are breaking up fight over a dog, and courts are asked to determine custody, judges in Manhattan have been going two different ways: (1) that the dog is a sensate creature, with feelings and fears, and the decision should be made on “what is best for all concerned”, which includes the dog, or (2) the dog is a piece of property, like a lamp or a chair, and custody should be awarded to which party has the better claim to legal title.

When Douglas Gellenbeck and Michael Whitton, who had co-habited as domestic partners for 13 years in a studio apartment they owned on East 11th street, split up, they went to court over title to the apartment as well as the custody of Stevie, “a tan, female part-Basenji dog.” One fellow claimed his ex-partner gave her to him as a birthday gift, the other said he’d paid some fees for her and stayed home taking care of her all day so he deserved to keep her.

In March 2015, Supreme Court Justice Arthur Engoron preliminarily ruled that he would hold a hearing so he could make a decision about “what is best for all concerned”, placing the burden on both parties to prove why Stevie would have “a better chance of living, prospering, loving and being loved” in the care of one man as opposed to the other, in a proceeding that would be similar to those in family court where warring parents introduce evidence to establish that it would be in the best interest of a child to be with them rather than with their awful ex-spouse.

This course was in line with a similar path taken earlier this year by Supreme Court Justice Matthew Cooper in a case called Travis v. Murray, 977 NYS 2d 621. The idea is to try to look at the situation from the point of view of the dog, and its needs and wishes, rather than try to cater to the furies of embittered ex-lovers.

Alas, Justice Engeron has now backtracked. On October 26th, he reversed himself and said he’d go back to the old property law standard. In the interim, another NY County Supreme Court Justice, Geoffrey Wright, in another dog custody case, had decided that pets are property, not sensitive creatures, and so the question of custody should be determined by the rules of property law, such as who signed the check or who procured the animal. Wright awarded custody of a Doberman Pinscher to a man who acquired the dog rather than to his ex-girlfriend who claimed it was best for the dog to be with her. (Fun fact: Wright, who is currently pursuing lawsuits against NYC over a parking ticket fine and a red light fine he received, is the son of the notorious “Turn em loose” Bruce Wright, the late judge who always set low bail for criminals. His brother, Assemblyman Keith Wright, is a possible successor to slippery Congressman Charlie Rangel.)

Engeron found that attempting to “harmonize” his ruling with Wright’s ruling “would be problematic, if not impossible.” He noted that Wright “emphasized the difficulty in determining what is best for animals who, after all, cannot exactly tell us what they want. But what if they could? Or what if we could determine that on our own? Are courts obligated to take into account what is best for animals? That would seem to depend upon whether animals have rights, specifically, the right to have courts take into account what is best for them. Of course, this is a hot-button topic”, referring to a recent case that held that a court could not issue a writ of habeas corpus to release a chimpanzee from captivity, since animals don’t have constitutional rights.

After concluding Stevie had no rights, the judge waxed on, “Evolutionary psychologists would say that membership in the same gene pool confers rights, but as much as humans love Stevie, they cannot procreate with her. Some would say that a Rousseauian ‘social contract’ confers rights, but only human beings are deemed to have contract rights enforceable at law. Stevie, for all the joy she brings to this world, does not have the right to have a court of law dictate a decision on what is best for her. The correct law is the law of property.” He set a hearing for December 10th to decide who has title to Stevie.

Of course, this rationale is what the American legal system once said about slaves (“no rights”) and about citizens with black skin (“no rights”) and about women (“no rights”). That wasn’t so very long ago, and look where we are now.

People who live intimately with dogs and share their lives with them will not agree with this decision. They understand that dogs can be just as sensitive and aware and discerning as most human beings, and more so than some. Animals know their own wants and needs and can communicate them fluently, and one doesn’t have to be an expert at the World Wildlife Society to speak their language.

This story isn’t over. Travis v. Murray went the other way. At one point, the diverging theories will have to be reconciled at the appellate level. That’s how law evolves, and that’s how humanity evolves. Stevie may go down in history, just like Dred Scott.

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Metro exclusive

Judge says dog custody battle the ‘toughest’ of his career

By Julia Marsh

December 16, 2015 | 1:37am

A Manhattan judge who normally decides such weighty civil matters as multimillion-dollar real-estate deals and the private use of public parks says the most trying case of his career was ­deciding who gets custody of a mutt named Stevie.

“This was . . . in my 14 years, maybe the very hardest if not the hardest case to decide,” Justice Arthur Engoron said in Manhattan Supreme Court Tuesday.

Except he didn’t decide. Instead, the judge shocked the two ex-boyfriends fighting over the pooch and ruled: “I hereby ­declare Stevie is co-owned.”

One of Stevie’s “dads,” Michael Whitton, sighed in frustration and hung his head.

The other man, Bergdorf Goodman designer Doug Gellenbeck, shook his head in disbelief.

Gellenbeck’s lawyer, David Wolf, told the judge he worried that co-parenting wouldn’t work because the men don’t get along.

Whitton’s lawyer, Daniel LoPresti, was similarly stunned. “We did expect either a ‘Stevie belongs to plaintiff’ or a ‘Stevie belongs to defendant’ decision,” he said afterward.

But the judge left it up to the warring ex-lovers to figure out what’s best for Stevie.

“I hope, despite some pessimism right now, that things can be worked out,” the judge said.

And he warned that if the parties couldn’t agree to a schedule of “alternating days, weeks, months or years,” he had the ­legal authority to put Stevie up for auction, as pets are considered property under the law.

He also told both men, “You can’t steal him, you can’t take him away forever, you can’t hide him. If you do, I assume the other side will come back and seek relief or you can go to the police.”

“I said in my opening remarks that I often wish there was a jury and this was one of those times. It would be easier and less pressure on me,” Engoron lamented.

Gellenbeck sued Whitton in 2014, claiming the dog belonged to him because he was a 40th-birthday gift.

Whitton claimed that it was just a “coincidence” that he adopted Stevie the day before Gellenbeck’s birthday.