Court Rules in Favor of Mother Forced to Move to Keep Her Son : Family law: The decision overturning a Ventura judge’s order is hailed by the ACLU as a victory for parents who want to relocate away from their former spouses.

In a decision that legal experts say will have a deep impact on California family law, a state appeals court Friday overturned an order by a Ventura judge that forced a divorced mother to move herself and her child from San Francisco to be near her former husband in Ventura.

The 2nd District Court of Appeal vacated a 1988 order from the Ventura County Superior Court, which told Pamela Besser that she would lose custody of her 6-year-old son, Joshua, unless she moved with him to be near the boy’s father, Michael Fingert.

Court of Appeal Justice Richard W. Abbe wrote that the ruling by Superior Court Judge Charles R. McGrath was unconstitutional because it violated Besser’s right to travel, which is guaranteed by the California and U.S. constitutions.

Abbe ruled that the lower court abused its discretion by deciding that the boy should live near his father because Fingert had a better-paying, longer-standing job.

Unless Fingert successfully appeals the ruling to the California Supreme Court, Besser will be allowed to move herself and Joshua, now 8, back to the San Francisco area, said Jon Davidson, an attorney for the American Civil Liberties Union who represented Besser.

Fingert has until Aug. 23 to file an appeal, he said.

Michael Fingert could not be reached Friday afternoon for comment, but his wife, Michelle, said he is declining comment on the case because, “we feel strongly about our privacy and the privacy of our 8-year-old boy.”

While the 2nd District Court of Appeal is an intermediate appellate court that deals primarily with cases in Ventura and Santa Barbara counties, its decisions have value as legal precedent throughout the state in the absence of any overriding ruling by the California Supreme Court.

The ACLU hailed the ruling as a victory for the rights of parents, particularly women, who want to move away from their ex-spouses while retaining custody of their children.

“It’s a very, very significant case, and I think it’s really a momentous victory for the rights of parents, and particularly mothers, to control their own destiny after divorce,” Davidson said.

The best interests of the child are the highest concern in any custody case, Davidson said, “but that doesn’t allow the courts to play God with the lives of the parents.”

Joan Patsy Ostroy, a prominent Los Angeles family law attorney, predicted that the Fingert decision will become ammunition for divorce lawyers, even though the case itself is relatively uncommon.

“The courts don’t usually make an order: ‘Either you move or you lose,’ although I suppose the courts say, ‘Either you stay put in this joint situation or you move alone,’ ” Ostroy said.

The appeals court has ruled that “if you’re going to say something like that, you have to premise it on the best interests of the child,” she said.

“I think it is an important decision for cases like this, where somebody is caught in this kind of arrangement,” said Hugh McIsaac, director of Family Court Services for Los Angeles County.

“I think it gives the primary caretaker a leg up . . . I think it’s a very important decision, but it really leaves the greater tragedy, and that’s that the parents couldn’t work together and fashion something that would work for this kid.”

Maxine Jackson, assistant director of Family Court Services for Los Angeles County, said the Fingert decision clarifies a longstanding dilemma in family law--whether a parent’s right to move is more important than the best interests of the child.

“This gives some guidance to trial judges, and it is an issue that comes up all the time, so it kind of reinforces the whole constitutionality of the issue,” Jackson said. “These cases are very difficult, they affect both the parents and their ability to be with a child . . . It’s not going to solve that issue--you can’t have it both ways . . . But I just see that it gives clarity.”

Los Angeles Family Court Judge Kenneth A. Black said so-called “removal” cases in which a custodial parent wants to relocate to a new area are “the most difficult issue” that the family law bench faces.

“By way of example, when you have a case where one party wants to move to New York . . . and the other party says, ‘What about my need to be near the child?’--that is the toughest, most gut-wrenching kind of case,” he said.

Besser, who is remarried and expecting a child with her second husband, grinned as she read a copy of the appeals court decision Friday.

“It’s like I won the lottery--the women’s rights lottery. I’m elated, it’s exactly what I’ve wanted,” she said. “The important thing is . . . that the courts can’t tell children where to live.

“It also makes me know I wasn’t nuts, that what I was fighting for was right,” she added.

Michael Fingert filed for a divorce from Pamela when she was nine months pregnant. Joshua was born Feb. 1, 1982. The divorce court later granted full custody to his mother and visitation rights to his father, but that order was later modified to give 37% custody to Fingert and 63% custody to Besser.

Besser moved from Ventura to San Diego, and then to San Francisco, and Joshua shuttled between his parents first by car, then airplane, according to court documents. He would spend three weeks with his mother, then one week with his father, even attending two different schools.

When the boy’s grades and friendships began to suffer, the couple went to Superior Court to modify the custody arrangement. Besser was given a choice--either move with Joshua back to Ventura County or give up her child. She moved, then filed the appeal through the ACLU earlier this year.

The appeals court ruling Friday began:

“Must the mother of a 6-year-old child, who is the primary custodial parent, be required to relocate to the area where the father resides to facilitate his visitation or lose custody? No.”

The ruling concluded: “Pamela cannot be ordered to choose between her right to resettle, find new employment, start a new life and retain custody of her child . . . There is no justification for the order requiring Pamela to either relocate or lose custody.”