Custody Case Reaches the Appeal Level : Arguments: Some civil rights and family law experts have condemned the court order that forced the mother and her 6-year-old son to move to Ventura.

The Ventura County Superior Court gave Pamela Besser a choice: move with her 6-year-old son near her ex-husband in Ventura County or give up custody of the boy altogether.

Besser chose to move, but she appealed the court’s 1988 order.

On Wednesday, Besser’s appeal reached the 2nd District Court of Appeal in the Santa Barbara County Government Center. There, Justice Arthur Gilbert called the lower court’s order “not much of a choice” for Besser.

Gilbert and Justices Steven J. Stone and Richard W. Abbe heard oral arguments Wednesday on the appeal, but they have not decided whether to overturn the Ventura County Superior Court order.

That decision could come as soon as next month, said ACLU attorney Jon Davidson, who argued on Besser’s behalf.

The case has become a cause celebre for some civil rights and family law experts, who have condemned the court order that has kept Besser and son Joshua in Ventura.

On Wednesday, Davidson argued that the ruling “smacks of gender bias” and forced Besser to quit her job, friends and temple so her husband, Michael Fingert, could conveniently visit their son Joshua, now age 8.

“It’s not the kind of order that’s in the discretion of the lower court to make,” Davidson told the justices. “It favored the father’s convenience in seeing his son on visitation rights over the mother’s right to maintain her home, her job and her community.”

Fingert’s attorney, Richard Taylor, let an earlier filed brief stand as his argument and made few comments at the hearing before the appeal court.

The brief said, in part, “The father’s interests just happened to coincide with the child’s best interests” and Besser’s lack of ties to the Bay Area. Taylor also argued that Davidson had no legal grounds to bring the case to the appeal court.

Besser, now remarried to and pregnant by another man who shares her desire to return to the Bay Area, issued a written statement that said:

“How do you explain to a child who is constantly asking why and when can we go to San Francisco?”

Fingert and Besser were high school sweethearts from age 16. They moved in together in 1970 and married six years later, moving to Ventura in 1979 so Fingert could start a bolt business.

In 1981, Besser became pregnant, which, she said, displeased Fingert. He moved out of their East Ventura residence. In 1982, during the last month of Besser’s pregnancy, he filed for divorce.

Joshua was born Feb. 1, 1982. The divorce court later granted full custody to his mother and visitation rights to his father, who rarely visited the boy even though he lived two miles away, according to court documents.

When Besser announced plans to move to Chicago, Fingert got a restraining order prohibiting her from removing the boy from California without his approval. She instead took him to San Diego. He lived with his mother three weeks out of the month. Every fourth week, Besser drove Joshua to an Anaheim restaurant and handed him over to Fingert, who would return him seven days later, court records show.

In 1985, Besser moved to Foster City, near San Francisco. Every fourth week, court records show, she would put Joshua on a plane to Ventura to visit his father.

By 1987, the trips were causing Joshua severe stomachaches, crying jags, depression and alienation from his schoolmates, Besser said. He was attending one school three weeks a month and another school one week a month.

Besser and Fingert went to Ventura County Superior Court to seek a better solution.

Besser argued in favor of giving custody of Joshua to Fingert on weekends, holidays and summers so he could continue his schooling. But Fingert argued that it would be better for his son and ex-wife to move back to Ventura so the boy could stay at one school, moving back and forth from one parent to the other every year.

Finally, Judge Charles McGrath followed the recommendations of a court-appointed psychiatrist. He ordered Besser to move with Joshua back to Ventura County or give up her child.

After Wednesday’s hearing, Besser said she was encouraged by Gilbert’s remarks but insisted she won’t settle for a victory in her own case.

“I want a law,” she said. “I want to move, and I want a law” to forbid courts from imposing such an arrangement ever again.