# Stephen v. Stephen > Supreme Court of Oklahoma · April 22, 1997 · 68 O.B.A.J. 1456 URL: https://www.frixlaw.com/law-library/cases/9538851 ## Case - **Full name:** Lynn STEPHEN, Now Martin, Appellant, v. Mark STEPHEN, Appellee - **Court:** Supreme Court of Oklahoma - **Decided:** April 22, 1997 - **Citations:** 68 O.B.A.J. 1456; 937 P.2d 92; 1997 OK 53; 1997 Okla. LEXIS 51; 1997 WL 192116 - **Precedential status:** Published - **Opinion:** Concurring in part by Summers - **Judges:** Alma Wilson - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9538851 ## How later opinions describe it (automated extraction) - noting that custodial parent's "rights and obligations of custody are extensive and operate against third parties, including the noncustodial parent" such that custodial parent's decision to homeschool children is not grounds for change of custody unless it "directly and adver… ## Opinion text SUMMERS, Vice Chief Justice, concurring in part and dissenting in part, with whom LAVENDER, J. joins. The trial court found that the custodial mother’s decision to home-school the children herself, in light of the testimony presented, would amount to a material change of circumstances adverse to the best interests of the children, justifying a change of custody unless the mother accepted certain conditions. The issue before us (on the custody question) is whether the trial court should be reversed for doing so. By what standards do we review the trial judge’s work? There are cases in which this Court has said we will not reverse a custody decision where it does not appear that the lower court “abused its discretion”. Gorham v. Gorham, 692 P.2d 1375, 1380 (Okla.1984); Roemer v. Roemer, 373 P.2d 55, 57 (Okla.1962). There are other custody eases where the Court used the traditional equity-based standard, that the findings and decree cannot be disturbed on appeal unless found to be “against the clear weight of the evidence.” Kahre v. Kahre, 916 P.2d 1355, 1360 (Okl.1995); Carpenter v. Carpenter, 645 P.2d 476, 480 (Okla.1982); Snow v. Winn, 607 P.2d 678, 681 (Okla.1980). There is a recent case, Mueggenborg v. Walling, 836 P.2d 112, 115 (Okla.1992), in which we found “no abuse of discretion” in granting custody because the decision “is not against the clear weight of the evidence.” There is, however, no disagreement that divorce litigation, and custody contests within it, are matters of equitable cognizance. This was thoroughly laid out in Carpenter, supra, at 480 . I counsel, therefore, that in child custody matters we stay with the traditional norm used in other matters of equity jurisprudence — that custody findings and decrees not be disturbed unless found to be against the clear weight of the evidence. Having said that, what would I do with this custody judgment on appeal? I would affirm it. Contrary to the mother’s assertion at trial, the trial court was not sitting in judgment with regard to the wisdom of home schooling. The trial judge stated on numerous occasions that he had no personal dislike of home schooling, and that he saw his role only as the defender of the best interests of the children. He repeatedly pointed out that the only question was whether, in this particular case, it was in the best interests of the children to be educated by their mother. The father of the children felt it was not. *101 At trial the mother admitted that she had on numerous occasions graded the children’s papers incorrectly. She did not give the children periodic grade cards. Only in anticipation of litigation did she complete the only grade reports the children received while being home schooled. She frequently failed to correct misspelled words on their papers. She testified that she did not go beyond algebra or geometry in school, and that she had a grade point average of about 2.85. She had a D in high school biology, the highest science course she took. She testified that she did not tell the children when they progressed to the next grade. A home schooling expert testified on behalf of the mother. While he advocated home schooling and thought that the mother was doing a good job, he agreed that it was harmful to the children’s education to have papers and tests graded incorrectly. He also agreed that the mother used the worst home schooling program available. He concluded that the mother needed improvement as a teacher. While he thought it was possible that she might improve, he advocated the use of a different program (his own), as well as tutors in areas where the mother was weak. In his opinion the children were being educated, but could do much better. There is some dispute as to whether the children actually progressed under the tutelage of their mother. A court-appointed expert tested the children, determined that each had a high I.Q., and that the older was capable of learning several grades beyond his actual age. In her opinion the children were not learning at a rate commensurate with their abilities. She also pointed out that the children had actually declined after being home schooled in areas such as reading, language and science. Test scores showed that the oldest child was extremely advanced in mathematics, and could learn at the tenth grade level. The father testified that he filed the modification motion because he does not feel it is in the best interest of his children to be educated by the mother. He did not question the mother’s fitness as a custodial parent. He realized that the children are extremely bright and is concerned for their academic well-being. Particularly, he was concerned about the mothers’s lack of knowledge in mathematics, and the older boy’s high aptitude in that area. If the parent seeking modification of custody can show that there has been a substantial change which is affecting the moral, temporal or mental welfare of the children, custody may be changed. Fox v. Fox, 904 P.2d 66, 69 (Okla.1995). Clearly, there was evidence to support the trial court’s ruling. The record shows that the children were bright, but were being slowed by the teacher. In fact, there are test results which show regression instead of progression. Even the mother’s expert felt she could use improvement. The court concluded that the educational well-being of the children was in jeopardy. In making his ruling, the judge attempted to tailor the judgment to fit the best interests of the children. He did not prohibit the children from being home schooled; rather, he determined that it was in their best interests to be schooled by someone capable of teaching them at the appropriate level, whether it be at home, in public school, or in private school. I do not find his ruling contrary to the clear weight of the evidence. For these reasons I would affirm the trial court’s judgment as to custody. I have no disagreement with the Court’s opinion otherwise. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9538851. Public record. Not legal advice.