Both the Family Law Section of the New York State Bar Association, the American Academy of Matrimonial Lawyers (New York Chapter) and other organizations are comprised of matrimonial practitioners that, by choice, dedicate time to the betterment of matrimonial law and practice. In short, these organizations try to shape the practice of family law, including by keeping the lines of communication open between practitioners and judges. Because family law can have such an immediate, direct impact on the litigants, it is important that the exchange of ideas that flows from keeping those lines of communication open continues into the future.
This author has been a co-chair of the Legislation Committee of the Family Law Section of the New York State Bar Association for nearly a decade now. Much has been written on the topic of waning Bar membership. See, for example, “Survival of the Fittest: As Membership Declines, the New York State Bar Association Targets Lawyers in Other Countries and States” which was published in this Journal in 2019; “With NY State Bar Facing Financial Woes, Members Clash Over Staying at Albany HQ,” also published in this Journal in 2021; and “Knocking on all the doors and rethinking everything: New approaches to bar membership,” published by the American Bar Association in 2018.
Professional organizations in family law are no exception. It does not take any heightened intellect to observe that interest amongst the next generation of matrimonial practitioners in professional organizations of the sort addressed in this article is in need of a boost. It is that interest that will ultimately be essential to ensuring that these professional organizations stay relevant going forward.
While interest in professional organizations may never reach a pinnacle as compared with the almighty Instagram—of which this Author has a handle, and thus that remark is not meant to denigrate social media—the fact is that the next generation of matrimonial practitioners needs to have not just any old interest, but a vested interest in the practice of matrimonial law for our professional organizations to remain relevant.
How do our professional organizations create that vested interest? The answer may well lie in pending legislation which illustrates what seems to be a glaring disconnect between the experiences of those of us with our boots on the grounds so to speak as compared with our legislators in Albany. Let’s explore a telling example.
Specifically, A05775/S04248 passed both houses of the New York legislature as of May 20, 2021. While the bill has not been signed into law just yet, the fact that this bill is up for consideration is nothing short of extraordinary. The bill would amend the Domestic Relations Law to require courts to consider the best interest of a “companion animal” when awarding possession in a divorce proceeding. Publicly available information states that the purpose of the legislation is to ensure that the best interests of pets are taken into consideration during divorce proceedings.
Taking a step back to recall Justice Cooper’s decision in Travis v. Murray, 977 N.Y.S.2d 621 (Sup. Ct., N.Y. Cty. 2013), the Travis decision states: “People who love their dogs almost always love them forever.” The decision explains the long-held treatment in decisional law of pets as personal property or “chattel.” While Justice Cooper’s decision deviated from the traditional “strict pets-equal-property viewpoint,” it did not side with the viewpoint—seemingly embodied by the pending legislation referenced here—that the disposition of pets in divorce warrants the same best interest analysis utilized for child custody determinations.
As Justice Cooper wrote:
Obviously, the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. As has been noted in decisions previously cited, it is impossible to truly determine what is in a dog’s best interests … there is no proven or practical means of gauging a dog’s happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interests analysis in child custody—particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations—are, for the most part, unascertainable when the subject is an animal rather than a human.
Yet, the pet custody bill does just that—it appears to present a framework where judges would be required to determine whether and to what extent a dog prefers to be with one litigant versus the other. Our pets do not converse with us, and thus how judges are expected to undertake such an analysis is beyond the comprehension of this author.
At the outset, this author’s skepticism on the pet custody bill is not a reflection of a lack of empathy for pet owners. When my family’s golden retriever of 13 years passed in 2018, the tears flowed and I immediately called the same breeder we met 13 years prior to make arrangements for golden retriever number two. This article is not at all meant to equate pets with ordinary personal property.
That said, judicial resources have their limits, particularly with the onset of the pandemic. The pet custody bill appears to provide no recognition of how, practically, our already heavily committed judicial system is supposed to undertake the responsibility for determining what is in the best interest of our pets versus our children. We also can’t ignore the fact that contested matrimonial litigation in New York often times involves litigants who have the resources to proceed with the time and expense of that process. If passed, the pet custody bill might lead to litigants with deep pockets pouring more resources into disputes over pet custody, which in turn might take more time away from judges who could otherwise be focused on child-custody, neglect, and domestic violence disputes involving litigants with lesser resources.
Perhaps a way for our professional organizations to continue to generate interest in the valuable work they do is to establish a dialogue between practitioners and legislators, so that feedback from practitioners can be provided before bills that may dramatically impact our practice are thrown into the mix. Judges hear the exchange of ideas between and among matrimonial practitioners at State Bar meetings, for example. Perhaps legislators need to hear them as well. More importantly, membership in professional organizations in family law might be more appealing if new members had access to those that make the laws that we, as practitioners, then have to incorporate into our day-to-day practice.
If the next generation of matrimonial practitioners knew that their voice counted—rather than being stuck in somewhat of a reactive posture—that might just provide the vested interest that is needed for our professional organizations in family law to keep moving forward.
“Professional Organizations in Family Law Need to Stay Relevant,” by Alan R. Feigenbaum was published in the New York Law Journal on September 23, 2021. Reprinted with permission.