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Boy's Monthly Commute Ending : Court Orders Halt to 6-Year-Old's 'Extreme' Custody Predicament

September 15, 1988|DENISE HAMILTON | Times Staff Writer

One Friday afternoon each month, a solemn-faced and slender blond-haired boy would enter San Francisco International Airport, his hand planted firmly inside the tense hand of his mother.

As business people with briefcases scurried to catch the 4 p.m. commuter flight to Los Angeles, Joshua Fingert, 6, shouldered a red nylon backpack--which held his favorite Smurf doll, a pack of gum and boxed juice--kissed his mother goodby and joined the exiting throng.

For the next week, the child would live with his father and attend public school in Ventura County, in accordance with a court order that split custody between the divorced parents separated by 500 miles and irreconcilable differences. Seven days later, Joshua would board another plane and hurtle back to his mother, his Bay Area friends and the private school he attended the remaining three weeks of each month.

On Monday, however, a Ventura County Superior Court judge brought Joshua's three-year commute to a grinding halt--ending what many California educational and family law experts called a ridiculous and even harmful arrangement.

'People Were Shocked'

"It was an extreme situation. People were shocked to hear of it," said Judith Wallerstein, executive director of the Center for Families in Transition, a Bay Area-based research and counseling center. She says a bill awaiting Gov. George Deukmejian's signature would make it more difficult for judges to approve such "silly" joint-custody arrangements.

Wallerstein, who helped draft the bill, said the current law allows judges to award joint custody even when parents live far away and young children are traumatized by shuttling back and forth. The new law would underscore the state's commitment to securing an arrangement in the child's best interest.

After an all-day hearing Monday, Judge Charles R. McGrath ordered that Joshua live and attend school full time in Ventura County where his father, 37-year-old Michael Fingert, lives and owns a wholesale nuts-and-bolts company.

McGrath did not alter the custody arrangement. He said Joshua should continue to live with his father one week each month and recommended that Joshua's mother, 37-year-old Pamela Besser, relocate to Ventura County so the child could remain with her the other three weeks.

McGrath said he considered granting summer custody to Fingert while ordering Joshua to spend the school year in Foster City, a San Francisco suburb where mother and son have lived for 3 1/2 years.

Ultimately, however, the judge said he relied on the recommendation of Dr. Robert Beilin, a family therapist and senior mediator for Ventura County, who urged that the mother relocate. Beilin said he was swayed by the fact that Fingert owned a home and a 10-year-old business in Ventura and had offered to help his ex-wife move. Besser had just launched a small health care newsletter in the Bay Area but did not have substantial financial ties there, Beilin told the judge.

"There are pretty strong equities both ways," McGrath noted just before pronouncing his verdict.

Besser, an articulate, poised woman, appeared stunned by the judge's decision. In the court hallway later, she fought back tears and vowed to move immediately to Ventura.

"What else can I do? Otherwise I'll lose my son, and he means more to me than anything in the world," she said.

But she had harsh words for the judge's decision.

"We're well-rooted in the community. . . . Josh has had the same set of playmates since he was 3. . . . I think it's cruel to pull him out of his school and away from his friends."

But Fingert said his son would suffer without his father nearby. "Joshua and I need to be together," he testified Monday. "We're father and son."

NOW Observers Outraged

The National Organization for Women "courtwatchers," a group that monitors family law cases, was also outraged. Spokeswoman Diana Hires, who attended the Fingert hearing, charged that McGrath favored the father and failed to act in the best interest of the child.

Fingert, a handsome, clean-shaven man who stood soldier-straight at the hearing and conferred frequently with his second wife, has steadfastly declined comment on the case. McGrath left for vacation after the hearing and was unavailable for comment.

And Joshua?

The boy did not have to testify at Monday's hearing. But Besser said he registered both sadness and curiosity when told of the latest change in his life.

"At first he started to cry. He said, 'Does that mean I'm not going to see. . . ?' and then he started naming all his friends and teachers up here," Besser said.

Those teachers, as well as a battery of doctors, psychologists and counselors, paint Joshua as a smart, engaging, almost too-serious child. They say he has suffered from the fallout of his parents' divorce and ensuing custody battle, which has raged bitterly throughout his brief life.

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