Temporary Custody of Boy Granted to Father

A 10-year-old boy whose long-running custody case went to the state Supreme Court before his mother won permission to rear him in San Francisco has won a temporary court order allowing him to move back to his father’s Ventura home.

Last week, Joshua Fingert was supposed to end his court-ordered summer visit with his father, Michael Fingert, and return home to San Francisco with his mother, Pamela Besser Theroux, who has primary custody of him.

But on July 17, the boy’s court-appointed attorney filed a request asking a Ventura County judge to flip-flop the custody agreement and award primary custody to the father and visiting rights to the mother.

“It is Josh’s desire . . . to live with his father during the next public school year and attend public school here in Ventura County,” wrote Lucia Tebbe, the boy’s attorney. “It is my opinion that Josh has made a well-considered, mature decision and is not being ‘brainwashed.’ ”

In papers filed last week, Tebbe added: “At this stage in his development, he appears to need his father’s influence more than his mother’s.”

Joshua and his parents met Thursday with a county mediator. When they failed to reach an agreement, Family Law Judge Joe D. Hadden ordered temporary custody awarded to Fingert, pending a hearing on permanent custody scheduled for Dec. 4.

Joshua, who was to have resumed school in San Francisco today, remains with his father in Ventura.

Joshua and his attorney could not be reached Monday for comment.

But the boy’s mother called the situation unbelievable.

“This child has never told me he wants to live with his daddy,” Theroux said Monday. “He has told me he likes Ventura better. . . . I just want to do what’s best for that boy, and that’s what I thought we were doing.”

However, Michael Fingert’s attorney said Joshua has spoken.

“Joshua is a sophisticated young man, and he’s elected to live with his father at this point,” said David Praver, the father’s attorney. “We don’t know how it’s going to work. We hope he’ll be very comfortable, and if at some point he wants to go live with his mother, his father will respect that wish.”

The battle over where Joshua should live has lasted most of his life.

After the couple divorced in 1982, shortly after Joshua’s birth, the mother received sole custody. Then a Ventura County judge modified the order, ruling that the father should have 37% custody and the mother 63%.

His mother moved with Joshua 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 to enroll him in two different schools.

By 1987, the trips were causing the child severe stomachaches, crying jags, depression and alienation from his schoolmates, according to his mother.

When Theroux returned to court seeking a new custody order, Ventura County Superior Court Judge Charles R. McGrath ordered her to move back to Ventura County with Joshua or give him up.

Theroux complied, but contacted the American Civil Liberties Union, which persuaded the state 2nd District Court of Appeal to overturn McGrath’s order. The appeal court ruled that McGrath’s order violated her right to travel, which is guaranteed by the California and U. S. constitutions.

After the state Supreme Court refused to review Fingert’s appeal of that ruling, Theroux was free to return to the San Francisco area.

On Aug. 29, 1990, Michael Fingert petitioned Judge Hadden for full custody.

But on Jan. 3, 1991, Fingert relinquished that bid. In testimony, he said: “Josh might be better served by living with his mother, wherever that may be, so long as Josh is allowed quality time for his dad.”

Fingert was to get Joshua during summers, school holidays and an average of one weekend a month, while Theroux was to have primary custody the rest of the time.

All was quiet, Theroux said, until Joshua’s attorney filed his request to live with his father.

“I am very concerned that his desires are the result of undue influences of either the father and/or Ms. Tebbe,” Theroux wrote in court papers filed last week. “At no time while my son was living with me did he ever express a desire to now live with his father. It was only when he went to his father for summer did this issue surface.”

In his own court papers, Michael Fingert declared, “Joshua has shared with me on many occasions his desire to live here in Ventura with me . . . rather than with his mother in Northern California.”

Theroux’s attorney, Don Adams, declined to discuss the case at length. Asked what Joshua really wants, he replied: “We’re not sure.”