Wk1 - Discussion Notes

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Jan 9, 2024

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New laws and procedures are put into place in cases with no precedents previously set by other cases. The world is constantly changing and growing around us, and because of this, there will be many cases where no precedents were previously set. Incidents like this are called “cases of first impression” requiring other areas of the law and sources to come into place (Lamond, 2016). The case that is being presented will have analogies drawn between them and other areas and once a decision has been made it will become precedential. The discussion of gay marriage and child custody offers different aspects that need looking into prior to making any decisions in court cases. Similar aspects of other cases can be applied in these instances; however, ultimately, new precedents will be set. Florida settled that the sexual orientation of a parent does not affect the custody rights of a child. However, proof of harm by a parent was the only thing that could hinder a custody decision. In Maradie vs. Maradie (1996), Port explained that the parent’s behavior had a direct impact on the livelihood of the child and that the “mere possibility” of harm was sufficient (Sakimura, 2020). In the case of Packard vs. Packard (1997), the decision that granted the father custody of the child due to the mother's sexual orientation was reversed by the court and clarified that when considering a mother's sexual orientation, the behavior of the mother needs to be the primary factor when deciding custody (Sakimura, 2020). In Jacoby vs. Jacoby (2000), the dental custody to the father was reversed by the trial courts due to the trial court improperly relying on the possibility of third-party bias against a mother’s sexual orientation (Sakimura, 2020). Lawrence vs. Texas (2003), the US Supreme Court decided that people can have same-sex intimacy and held that individuals have a constitutional tact and privacy right to enter an intimate relationship with someone of the same gender. Florida courts have not addressed this issue, and, likely, Lawrence could possibly prevent a court from restricting a parent’s custody or visitation based solely on that parent’s involvement in a constitutionally protected relationship with somebody of the same gender, just like how Florida courts prevent courts from restricting custody or visitation based on a parent’s religion (Sakimura, 2020). New precedents for current issues have been formed as seen in the previous cases. When precedents are unknown, it is important to dive into similar cases that can be utilized to develop a new law. If the students were judges, there’s a possibility that they would roll often, in a biased way. Students will not have enough experience from prior cases to make the judges' appropriate decisions. Even though students are possibly more up-to-date on research, judges have the background experience and update themselves with current research to make the best decision with the current case. The Lord constantly states throughout the Bible how precious children are to him and the world. Children are gifts from God, and he cares for them deeply. The Lord mentions in Psalm 123:3, “Children are a gift from the Lord; they are a reward from him.” (The Busy Mom’s Bible, 2011, Psalm 123:3). In the world today, there is so much hate towards those of the LGBTQ community. Some people believe they do not deserve to be parents because of who they love, which is wrong. As a forensic psychology major and a prior psychology undergraduate student, I have read up on cases where children were abused and killed by their biological parents. There have been heartbreaking cases of abuse, selfishness, and vengeful actions that have taken the lives of innocent children. The system has failed so many children to the Point where because the system did not get involved like it should have, those children lost their lives. Despite a parent’s sexual orientation, it should not matter whether they are gay, straight, bisexual, transgender, etc., the only thing that matters is the well-being of the child. There needs to be a major reform in Child protective services. If that child is known to be in danger by their own blood parents, even if it is their adoptive parents or even foster parents, those parents need to lose custody of that

child. That child should be given to somebody who will love them and take care of them no matter what those parents' sexual orientation is. The Lord says that we are to love our neighbors, including people who are part of the LGBTQ community. We have no right to judge them, and we have no right to say that they should not be parents just because of their sexual orientation. Thoughts like this, the thought that because somebody is gay or transgender, etc., are why so many kids end up being murdered by their own parents and have no chance at life because it has been stolen from them due to the system failing them. References: Lamong, G. (2016). Precedents and analogy in legal reasoning. Stanford Encyclopedia of Philosophy, 15 (10). Sakimura, C. (2020). Child Custody and Visitation Issues for Lesbian, Gay, Bisexual and Transgender Parents in Florida. Retrieved June 30, 2021, from https://www.nclrights.org/get-help/resource/child- custody-and-visitation-issues-forlesbian-gay-bisexual-and-transgender-parents-in-florida/ CJUS 640 Liberty University 640 Discussion 1 Discuss the possibility of cases for which there are no precedents and cases for which new laws are being enacted, such as gay marriage and child custody. Who has the rights to the child when both parents are mothers? Fathers? What about marriage between a naturally born male or female and a postoperative gender-reassigned male or female? What happens in cases for which there are no precedents? How would students rule if they were judges? When a case is brought to court for a decision of guilty or not guilty, that decision is made based on many factors. The most well-known factor is arguments from both the prosecution and defense teams and the physical and circumstantial evidence that the parties present. A precedent is a less known factor that can influence a judge's decision. Precedents are cases that have been heard, and a decision has been made; these precedents are used to make decisions on similar cases. In short, court decisions are influenced by previous court decisions. The prosecution and defense may present several precedents when arguing their case. As time passes and the world changes, new issues arise in court. The influence of new laws and societal factors may bring issues to the court without precedent. So, what happens when there is no precedent? In this case, a decision must be made based on the arguments and evidence presented to create a precedent. When there is no precedent, a judge must carefully consider the evidence to make the decision that ensures justice.

There is no precedent in the above example regarding the custody of a child who may have two mothers or two fathers. Custody cases in the past have involved a mother and a father. When deciding on a custody matter, I believe the sex or gender of the parents is irrelevant to the decision. My decision would be based on the facts presented in court. If one parent were proven to be unfit it would only make sense that you place the child with the other parent. If both parents are fit to take care of the child, a 50/50 custody agreement would need to be made. To make that decision, I would advise the two parties to get together with their attorneys and develop a 50/50 schedule that works best for both parents. When precedents are not set, the judge must carefully consider the case and make the best decision for all parties involved, whether the issue is a child having two mothers or fathers or someone committing a crime where there is no precedent. These cases are especially important because they will set the stage for decisions made in similar cases. In the case of custody, the child's well-being and happiness need to be at the forefront of the decision as they are the most important aspects of the case. As followers of God is it our job to protect all of God’s children? Isaiah 54:13 states, “The lord shall teach all your children, and great shall be the peace of your children” (English Standard Bible, 2001). 467 Words Precedents are very important when making court decisions, whether for a criminal trial or custody hearing. Precedents are quite persuasive when used to argue a court case (Costanzo & Krauss, 2021). Although precedents hold power in court, psychologists believe that the criminal justice system should be more open and understand that human behavior changes and should be continually studied and revised as necessary. I agree that deciding custody has to be one of the hardest decisions a judge has to make. It is up to them to determine which parent is fit without bias or impartiality. Personal feelings must not affect the decision when making a custody decision for a same-sex couple with no precedent. This is a decision that should be made on facts and should be focused on what is best for the child. Isaiah 54:13 states, “The Lord shall teach all your children, and great shall be the peace of your children” (English Standard Bible, 2001). In other cases where there are no precedents, the same stance should be taken; the facts of the case should be carefully considered with no bias or personal opinions influencing the decision. Additionally, it should be kept in mind that the decision will set the precedent for future cases. Words 251 In the Allison D. v Virginia (1991) case, it does make sense that the original decision followed the lines of cases involving both a mother and a father. I have always found it odd that the mother in same-sex custody cases legally has physical custody of the child unless the courts determine otherwise. Do you think this is fair to the father? Would you advocate for changing this law? I would advocate for changing this law. Giving custody to the mother without proper investigation into the lives of both parents puts the child’s health and safety at risk; the mother is not always the best parent for the child. Determining who receives custody of a child is a hard decision and should never be taken lightly. Although there are precedents for custody cases, the focus should always be on the child and what is best for them. In Psalm 127:3, we are told to protect the weak and to rescue them from the hands of the wicked. This verse can guide us; we are instructed to do what is best for those weaker than us.

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References Costanzo, M., & Krauss, D. A. (2021). Forensic and legal psychology: psychological science applied to law. Macmillan Learning. Trammell, A. M. (2017). PRECEDENT AND PRECLUSION. The Notre Dame Law Review, 93(2), 565. In Chapter 1, the author outlines the differences in the Cultures of Psychology and the Legal System by explaining the differences between rulings and data. One of these explanations is that precedents influence current rulings in cases. Discuss the possibility of cases for which there are no precedents and cases for which new laws are being enacted, such as gay marriage and child custody. Who has the rights to the child when both parents are mothers? Fathers? What about marriage between a naturally born male or female and a postoperative gender reassigned male or female? What happens in cases for which there are no precedents? How would students rule if they were judges? America today has become one of the largest multicultural societies; this is due in fact from the diverse amount of racial and ethnic heritages, a wide range of religions, differences in values and traditions, and foreign languages. As society has grown, so have the differences in how to proceed with many situations. For example, separating children from their parents when the parents are same sex/transgender. Out of a need to resolve disagreements or in this case divorce, laws are created by people (n.d.). More specifically, the culture clash of rulings versus data plays a major role in the determination of what happens. Psychology advances through measurable data that has reliability and the law advances through real life experiences and/or subjective opinions (n.d.). This is where laws and psychology become tricky. Psychology explains behavior and is ideally objective because it focuses on research and the law is past oriented and adversarial thus causing confusion when a judge looks at custody agreements for same sex couples. Not until recently did same sex marriage become legal, and is still illegal in some states. However, when it comes to custody agreements the law looks at what has happened in the past and not what has necessarily been researched as best practices (Costanzo and Krauss, 2018). The current law, in all states, requires that the custody arrangements serve at the best interest for the child (Costanzo and Krauss, 2018). While this sounds easy, there is no presumption that either the father or mother are “more fit” or entitled to custody as their needs come secondary to those of the child. Separating a child from a parent is probably one of the hardest things a judge has to decide, but again the main goal is to place the child in the environment best suited for the child (Costanzo and Krauss, 2018). With this law in place, outside circumstances now play a role in the determination of which parent best suites the needs of the child. The decision that judges make is difficult; there are not many precedents in place for this type of situation. As previously mentioned, the courts look for the needs of the child, which include a stable and supportive familial environment (Dodge, 2006). If I were in a judge’s position and had to make a choice which parent got custody of the child I would look at outside factors such as their criminal history,

finances, career, and I would listen to friends/family of both parties to get a better understanding of each person, objectively. Ultimately, I would try to establish a joint custody agreement if both parties meet the child's needs. A proposal that utilizes a mediation program that “…eases the psychological stress and strain involved in the public, judicial administration of child custody disputes was mentioned. The child’s best interests are considered behind closed doors and off the record. The resulting agreement would be judicially enforced like a judgment. However, the parties are not put in a position to publicly explain how and why one parent is better suited for the primary, legal parental role” (Dodge, 2006). This program would shield the child from the situation and would be descriptive and ideally objective. This is how I would make a decision about who gets sole custody of a child in same-sex marriages. Proverbs 3:5-6 (ESV), “Trust in the Lord with all your heart, and do not lean on your own understanding. In all your ways acknowledge him, and he will make straight your paths”. While the path to deciding who gets custody of a child is difficult and long, if we have faith, God will lead the way. Reference Costanzo, M., and Krauss, D. (2018). Forensic and Legal Psychology: Psychological Science Applied to Law, 3rd ed. Worth Publisher. ISBN: 9781319060312 Dodge, J. A. (2006). Same-sex marriage and divorce: A proposal for child custody mediation*. Family Court Review, 44 (1), 87–103. https://doi-org.ezproxy.liberty.edu/10.1111/j.1744- 1617.2006.00069.x Padowitz, K. (n.d.). Retrieved from https://www.psychology-criminalbehavior-law.com/2015/01/conflict-psychology-law/ LEGAL TERMS Stare decisis : To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent that is not afterward to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases that have been hastily decided or contrary to principle. Brandeis Brief : A brief, usually an appellate brief, which utilizes economic, sociological, or other scientific and statistical evidence in addition to legal principles when presenting arguments in a case. Named after Louis D. Brandeis, who filed such a brief with the United States Supreme Court in Muller v. Oregon (1908) during his successful defense of a state law limiting the maximum workday of female laundry workers.

“In the abstract, psychology and law seem like perfect partners. Both focus on human behavior, both strive to reveal the truth, and both attempt to solve human problems and improve the human condition. However, in practice, the relationship between psychology and law has not always been smooth or satisfying.” Costanzo, M., & Krauss, D. (2021). Forensic and Legal Psychology (4th ed.). Worth Publishers. Chapter 1 (in-text) -- (Costanzo & Krauss, 2021, pp. 1-29) In Chapter 1, the author outlines the differences in the Cultures of Psychology and the Legal System byexplaining the differences betweenrulingsanddata. One of these explanations is that precedentsinfluence current rulings in cases. Discuss the possibility of cases for which there are no precedents andcases for which new laws are being enacted, such as gay marriage and child custody. Who has the rightsto the child when both parents are mothers? Fathers? What about marriage between a naturally bornmale or female and a postoperative gender reassigned male or female? What happens in cases for whichthere are no precedents? How would students rule if they were judges?America today has become one of the largest multicultural societies; this is due in fact from thediverse amount of racial and ethnic heritages, a wide range of religions, differences in values andtraditions, and foreign languages. As society has grown, so have the differences in how to proceed withmany situations. For example, separating children from their parents when the parents are samesex/transgender. Out of a need to resolve disagreements or in this case divorce, laws are created bypeople (n.d.). More specifically, the culture clash of rulings versus data plays a major role in the determination of what happens. Psychology advances through measurable data that has reliability andthe law advances through real life experiences and/or subjective opinions (n.d.). This is where laws andpsychology become tricky. Psychology explains behavior and is ideally objective because it focuses onresearch and the law is past-oriented and adversarial, thus causing confusion when a judge looks atcustody agreements for same sex couples. Not until recently did same sex marriage become legal, and is still illegal in some states. However, when it comes to custody agreements the law looks at what has happened in the past and not what has necessarily been researched as best practices (Costanzo and Krauss, 2018). The current law, in all states, requires that the custody arrangements serve at the best interest for the child (Costanzo & Krauss, 2018). While this sounds easy, there is no presumption that either the father or mother is “more fit” or entitled to custody as their needs come secondary to those of the child. Separating a child from a parent is probably one of the hardest things a judge has to decide, but again, the main goal is to place the child in the environment best suited for the child (Costanzo and Krauss, 2018). With this law in place, outside circumstances now play a role in the determination of which parent best suits the needs of the child. Judges' decision is difficult; there are not many precedents in place for this type of situation. As previously mentioned, the courts look for the child's needs, including a stable and supportive familial environment (Dodge, 2006). If I were in a judge’s position and had to make a choice about which parent got custody of the child, I would look at outside factors such as their criminal history, finances, and career, and I would listen to friends/family of both parties to get a better understanding of each person, objectively. Ultimately, I would try to establish a

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joint custody agreement if both parties meet the needs of the child. A proposal was mentioned that utilizes a mediation program that “…eases the psychological stress and strain involved in the public, judicial administration of child custody disputes. The child’s best interests are considered behind closed doors and off the record. The resulting agreement would be judicially enforced like a judgment, but the parties are not put in a position to publicly explain how and why one parent is better suited for the primary, legal parental role” (Dodge, 2006). This program would shield the child from the situation and would be descriptive and ideally objective. This is how I would make a decision of who gets sole custody of a child in same-sex marriages. Proverbs 3:5-6 (ESV), “Trust in the Lord with all your heart, and do not lean on your own understanding. In all your ways acknowledge him, and he will make straight your paths”. While the path to deciding who gets custody of a child is complex and long, if we have faith, God will lead the way Reference Costanzo, M., and Krauss, D. (2018). Forensic and Legal Psychology: Psychological Science Applied to Law,3rd ed. Worth Publisher. ISBN: 9781319060312 Dodge, J. A. (2006). Same-sex marriage and divorce: A proposal for child custody mediation*.FamilyCourt Review,44(1), 87–103.https://doi-org.ezproxy.liberty.edu/10.1111/j.1744- 1617.2006.00069.x Holy Bible Padowitz, K. (n.d.). Retrieved from http://www.psychology-criminalbehavior-law.com/2015/01/conflict- psychology-law/ In cases where there are no presidents previously set by other cases, new laws and procedures will be put in place. As the world is constantly changing and growing, there will be many cases where there are no precedents previously set. These instances are called “cases of first impression” which will require other areas of law and sources to come into place (Lamond, 2016). Analogies will be drawn between other areas and the case that is being presented. Once a decision is made it will become precedential. When discussing gay marriage and child custody, there are different aspects that need to be looked at prior to making any decisions in court cases. I believe similar aspects of other cases can be applied to these instances but ultimately new precedents will be set. In Florida, it was settled that sexual orientation of a parent does not affect the custody rights of the child. The only thing that could hinder a custody decision would be proof of harm by a parent. In Maradie v. Maradie (1996), the court explained that the parent’s behavior has a direct impact on the livelihood of the child and that “mere possibility”

of harm is insufficient (Sakimura, 2020). In Packard v. Packard (1997), the court reversed the decision that granted the father custody of the child due to the mother’s sexual orientation. The court clarified that when considering the mother’s sexual orientation, the behavior of the mother should be the primary factor when deciding custody (Sakimura, 2020). Another case, Jacoby v. Jacoby (2000), reversed the trial court’s grant of residential custody to the father because the trial court had improperly relied on the possibility of third parties’ bias against the mother’s sexual orientation (Sakimura, 2020). In Lawrence v. Texas (2003), the U.S. Supreme Court decided that people can have same-sex intimacy and held that individuals have a constitutionally protected privacy right to enter into an intimate relationship with a person of the same gender. Although Florida courts have not directly addressed this issue, it is likely that Lawrence would prevent a court from restricting a parent’s custody or visitation based solely on the parent’s involvement in a constitutionally protected relationship with a person of the same gender, just as Florida courts prevent courts from restricting custody or visitation based on a parent’s religion (Sakimura, 2020). As you can see, previous cases have made their way to form new precedents for current issues. When no precedents are known, a deeper dive into other similar cases will be utilized to develop a new law. If students were judges, they would rule more often than not, in a biased way. Students don’t have enough experience from prior cases to make decisions that judges make. Even though students might be more up-to-date on the research, judges have that background and experience as well as updating themselves with current research to make a better decision with the current case at hand. When it comes to children, they are gifts from God and He cares about them. In Psalm 127:3, it says “Children are a gift from the Lord; they are a reward from him.” I believe that no matter what a parent’s sexual orientation is, the only thing that matters is the well-bewing of the child. If the child is in danger then that parent should not be given custody. References: Lamond, G. (2016). Precedents and analogy in legal reasoning. Stanford Encyclopedia of Philosophy, 15(10). Sakimura, C. (2020, May 04). Child Custody and Visitation Issues for Lesbian, Gay, Bisexual, and Transgender Parents in Florida. Retrieved August 30, 2020, from http://www.nclrights.org/get-help/resource/child-custody-and-visitation-issues-for-lesbian-gay- bisexual-and-transgender-parents-in-florida/

Hi! I found your post to be very interesting and insightful. I like how you had a different way of thinking through this discussion which drove me to respond. I enjoyed the discussion about how judges, especially in today’s age, can use their own personal beliefs when making a ruling. I find that to be important to discuss because there are many times when previous rulings on certain topics are not exactly how someone may still feel given additional research or knowledge on the subject (Costanzo & Krauss, 2018). In scenarios when a precedent has not been established, the rulings should be more carefully examined and thought out. The world is constantly changing so newer cases are coming to light given the changes in sexual orientation and others. This is going to continue as well so it is important for judges to be able to adapt and gather the necessary information in order to make a decision that will become the new precedent for that given topic or case (Lamond, 2016). In cases of same-sex marriage custody disputes, no matter what, the child’s well-being should always be the first priority. Mathew 19:14 says ““Jesus said, ‘Let the little children come to me, and do not hinder them, for the kingdom of heaven belongs to such as these.’ ” Children are a gift from God and we should on every account protect them. References: Costanzo, M. and Krauss, D. (2018). Forensic and Legal Psychology: Psychological Science Applied to Law, 3rd ed. Worth Publisher. ISBN: 9781319060312 Lamond, G. (2016). Precedents and analogy in legal reasoning. Stanford Encyclopedia of Philosophy, 15(10). Hi! I thoroughly enjoyed reading your well thought out post. It was very insightful and helpful in regards to this discussion. I really enjoyed reading the part about same-sex family custody disputes. I found your information regarding the impact of one member of the same-sex marriage to not have a strong parent- child relationship compared to the parent that had that connection automatically very intersting and informative. I agree that in cases where one parent is the person that had the child and the other parent didn’t there could be a disadvantage to the child’s connection with that parent (Costanzo & Krauss, 2018). This could potentially be seen as something that isn’t beneficial for the child which can ultimately go against that parent in a custody battle (Lamond, 2016). Since it has been seen that sex of the aprent doesn’t necessarily impact the child other methods of deciding custody can be done, like psychological tests as you mentioned. I found that to be an interesting way of deciding the best situation for the child as well. Ultimately, the Bible tells us that children are gifts from God and we should always protect them. Given the most recent and newer cases these days, the Bible doesn’t necessarily speak to these topics but in general it tells us that children should be cared for and loved no matter who their parents are and what sexual orientation they might be considered.

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References: Costanzo, M. and Krauss, D. (2018). Forensic and Legal Psychology: Psychological Science Applied to Law, 3rd ed. Worth Publisher. ISBN: 9781319060312 Lamond, G. (2016). Precedents and analogy in legal reasoning. Stanford Encyclopedia of Philosophy, 15(10).

Wk1 - Discussion Notes

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