Parents End Bitter Battle for Custody

In a move that stunned the other participants in a bitter child custody case, a Ventura man gave up his bid for sole custody of his son Thursday, agreeing to let the boy’s mother keep him most of the year.

The case, appealed as high as the state Supreme Court after a judge ordered Pamela Besser Theroux to move to Ventura County or give up custody of her son, ended with a hug by the battling parents of 8-year-old Joshua Fingert and a call from the judge for “No more war.”

During the hourlong hearing Thursday, Michael Fingert somberly told the judge that he had decided that giving primary custody to Theroux, his ex-wife, would be best for Joshua.

“I’ve come to the conclusion Josh might be better served by living with his mother, wherever that may be, so long as Josh is allowed quality time with his dad,” Fingert testified, forsaking an earlier petition for sole custody.

Theroux wept quietly, then briefly embraced Fingert as the hearing ended.

Fingert declined comment and walked out of Department 40, the courtroom where much of the dispute over Joshua has been aired.

And Theroux, clearly shaken, said, “I never want to see Department 40 again, ever, ever. . . . I think it’s finally gotten to the point where everybody’s looked at what’s best for Joshua.”

She said her son’s view of the custody battle to date has been, “The whole thing stinks.”

Joshua’s parents have been arguing over him in court for most of his life.

A Ventura divorce court granted Michael Fingert an end to the couple’s marriage shortly after Joshua was born in 1982, awarding full custody of the boy to his mother and visitation rights to his father.

A family court judge later modified the custody order to give 37% custody to his father and 63% to his mother. Joshua moved with his mother to the San Francisco area in 1985, forcing the couple to put him on a plane to visit his father in Ventura every fourth week and enroll him in two different schools.

But by 1987, the trips apparently were causing Joshua severe stomachaches, crying jags, depression and alienation from his schoolmates, according to his mother. She and the boy returned to Ventura County Superior Court seeking a new custody order.

Judge Charles R. McGrath ordered Theroux to move back to Ventura County with Joshua or give up her child.

She complied but contacted the American Civil Liberties Union, which appealed the decision to the state 2nd District Court of Appeal.

On July 13, the appeals court overturned McGrath’s order, ruling that it violated Theroux’s right to travel, which is guaranteed by the California and U.S. constitutions.

The state Supreme Court refused to review Fingert’s appeal of that ruling.

This freed Theroux to return to the San Francisco area, but only after reaching a new custody agreement to replace the one overturned by the appeals court.

On Aug. 29, Fingert petitioned Superior Court Judge Joe Hadden for full custody of Joshua, and both parents braced for a protracted custody hearing.

But Fingert’s surprise decision Thursday to relinquish that bid seemed to erase much of the conflict and clear the way for Theroux to return to the San Francisco area with Joshua.

His request for visitation rights during summer and holidays closely matched the recommendations of Dr. Joyce M. Lunt, the psychologist appointed by the court to evaluate the family.

And it won the approval of Lucia Vaughan Tebbe, the attorney Hadden appointed last fall to represent Joshua.

“What I find is a little boy who loves both his parents and is torn, really torn, and he’s pulled both ways,” Lunt testified after Fingert made his appeal.

Although Theroux asked Hadden for legal custody--the authority to make decisions about Joshua’s schooling, major medical care and legal affairs--Hadden agreed with Lunt’s assessment that this would “really cut the father out psychologically” and awarded joint legal custody.

After giving tentative approval to the compromise, Hadden pleaded with Joshua’s parents to keep the reconciliation alive.

“It’s really corny,” the judge said, “but I have this image . . . of the two parents down in the trenches with rifles shooting at each other and the child running back and forth between them to try to get them to stop and getting hit by some of the bullets. And Josh has been wounded in this case.”