Father Disputes Custody Ruling : Families: Michael Fingert says the appellate court erred in overturning a decision forcing his ex-wife to relocate to Ventura with their son.

The father of an 8-year-old Ventura boy involved in a bitter custody battle with the boy’s mother has petitioned the state Supreme Court to review the case.

Michael Fingert argues that the 2nd District Court of Appeal improperly ruled last month that a Ventura County Superior Court judge wrongly ordered his son, Joshua Fingert, and his ex-wife to move from San Francisco to Ventura.

But the American Civil Liberties Union argues that the appeals court ruling was fair and plans to oppose Fingert’s request.

The custody battle is almost as old as Joshua, stemming from his parents’ attempts to work out joint custody while living in counties hundreds of miles apart.

On July 13, the Court of Appeal overturned a lower court’s order that forced Joshua’s mother, Pamela Besser Theroux, to move from San Francisco to Ventura to be near Fingert or lose custody of the boy.

Ventura County Superior Court Judge Charles R. McGrath had decided that putting both parents in the same town and Joshua in one school would reduce the psychological stress he was feeling from attending two schools and spending one week with his father for every three weeks with his mother.

The appeals court ruled that McGrath’s order violated the mother’s right to travel, guaranteed by the California and U.S. constitutions.

Appeal Court Justice Richard W. Abbe also ruled that the Superior Court abused its discretion by deciding that Joshua should live near his father because Fingert had a better-paying, longer-standing job than did his mother.

But Fingert argued in his petition that the appeals court did not have enough evidence to rule that the Superior Court abused its discretion, said his attorney, Richard L. Taylor.

The appeals court improperly based its ruling on an assumption--that McGrath ordered Joshua to live near his father solely because Fingert made more money than Theroux, according to the petition.

Fingert also argued in the petition that McGrath was acting within state law to protect Joshua’s interests by giving him “ongoing, frequent contact with both parents.”

“This area of law is inherently complex and emotionally difficult, and courts of appeal are poorly situated to make the kind of detailed factual inquiry which is necessary,” the petition says.

“A finding of abuse of discretion should be made only on the clearest of evidence, and only after the trial court has had adequate opportunity to explain and support its reasoning. Neither of these circumstances is present here,” it says.

ACLU attorney Jon Davidson said he will file a reply with the Supreme Court within two weeks.

The case has been further complicated by Joshua’s parents asking the Ventura County Superior Court to further change their custody arrangement.

Joshua’s mother still has 63% custody of him, while his father has 37%, according to a 1988 arrangement that is still in force.

But on June 15, Fingert petitioned the Superior Court to grant him 50% custody. And on Aug. 22, Theroux asked the court to grant her full custody, saying she wants to exercise the right the Court of Appeal gave her to move back to the San Francisco area.

The parents are scheduled to meet in court this morning to try to reach an agreement. Superior Court Judge Joe D. Hadden has appointed a lawyer to represent Joshua.