State Appeals Court Overturns Ruling in Child-Custody Case : Family law: Judges say divorced woman cannot be forced to move to area near her ex-husband in order to retain her son.

In a decision expected to have deep impact on California family law, a state appeals court Friday overturned a judge’s order 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 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 Ventura County 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 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. 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.”

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.”

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 unusual.

“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.”

Los Angeles Family Court Judge Kenneth Black said that so-called “removal” cases in which a parent wants to relocate to another area while retaining custody present “the most difficult issue” that the family law bench faces.

“That is the toughest, most gut-wrenching kind of case,” he said.

Said Besser: “It’s like I won the lottery--the women’s rights lottery. I’m elated, it’s exactly what I’ve wanted.” She grinned as she read a copy of the appeals court decision.

Besser applauded the ruling because it determined “that the courts can’t tell children where to live . . . and it also makes me know I wasn’t nuts, that what I was fighting for was right.”

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

Besser moved to San Diego, and later to San Francisco, and Joshua shuttled between his parents 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 suffering, the couple went to Superior Court to modify the custody arrangement, and 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 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.”