DeNillo v. DeNillo

535 A.2d 200, 369 Pa. Super. 363, 1987 Pa. Super. LEXIS 9758
CourtSupreme Court of Pennsylvania
DecidedDecember 30, 1987
StatusPublished
Cited by19 cases

This text of 535 A.2d 200 (DeNillo v. DeNillo) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeNillo v. DeNillo, 535 A.2d 200, 369 Pa. Super. 363, 1987 Pa. Super. LEXIS 9758 (Pa. 1987).

Opinions

HESTER Judge:

This appeal is from the hearing court’s decision of December 4, 1986, ordering appellant, Michelle DeNillo, and appellee, Samuel DeNillo, to continue sharing physical custody of their child, Sam, on an alternating weekly basis. Sam, born March 19, 1982, is five years old. We reverse and remand.

On March 7, 1983, pursuant to the parties’ agreement, the court awarded custody of Sam, who was then eleven months old, to appellant. The court later filed an amended order on April 11, 1983, providing for joint legal custody, with primary physical custody awarded to appellee until appellant could arrange suitable housing.

Thereafter, on September 20, 1983, again pursuant to the parties’ agreement, the court awarded shared physical custody of Sam to his parents on alternating weeks. That order also provided for a review seven months later on April 24, 1984. A series of three hearings then were held: April 24, 1984, August 21, 1984, and March 3, 1986. In the interim, on January 26, 1984, the parties were divorced. Finally, on December 4, 1986, the hearing court ordered continued shared custody of the child, holding that any other arrangement was not in the child’s best interest. This appeal followed.

[365]*365There are two issues before us. The first is whether the hearing court erred in refusing to consider appellee’s criminal sexual misconduct as evidenced by his participation in an Accelerated Rehabilitative Disposition (ARD) program after being held for court on two counts of indecent exposure. The second issue concerns the propriety of the order of shared custody in light of the guidelines established in In re Wesley, J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982).

At the first hearing held April 24, 1984, Officer Thomas Mason of the City of Jeannette Police Department testified that following an investigation he arrested appellee on two counts of indecent exposure. A preliminary hearing was held on December 5, 1983, at which the two victims appeared and testified. Notes of Testimony (N.T.), 4/24/84, at 8-9. Following the hearing, appellee was held for court on both counts. Id. at 9. On February 1, 1984, appellee elected to participate in an ARD program and was given two years probation. Id. Other requirements of the probation included a mental evaluation and the payment of the costs of prosecution.

Appellant presented the above testimony in support of her request for primary physical custody of Sam. In addition to arguing that the alternating weekly schedule was failing, appellant requested the hearing court to consider the effects of appellee’s criminal conduct, as evidenced by his election to participate in ARD, not only upon the child, but also upon appellee’s fitness as a custodian.

In rejecting the notion that it should have considered appellee’s misconduct, the hearing court failed to acknowledge that an individual is not considered for ARD until he has been held for court at a preliminary hearing, unless such a hearing is waived. In this case, a preliminary hearing was held, and the charges against appellee were held for court. Thus, the Commonwealth must have established the existence of a prima facie case.

While it is true that admission to an ARD program is not equivalent to a conviction, Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982); Commonwealth v. [366]*366Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981), it is equally true that ARD is legally relevant in certain proceedings. See 75 Pa.C.S. §§ 1534, 1542(c), 1539(c); Commonwealth, Department of Transportation v. McDevitt, 57 Pa.Cmwth. 589, 427 A.2d 280 (1981), affd, 500 Pa. 532, 458 A.2d 939 (1983) (election by motorist to participate in ARD program constitutes a knowing waiver of motorist’s right to prove his innocence and amounts to a conviction for purposes of classifying the motorist as an habitual offender). Further, even when an ARD program is successfully completed, the charges are dismissed, and no conviction results, neither the original charges nor the individual’s participation in the ARD program are removed from the record in the event of subsequent criminal activity. Commonwealth v. Knepp, supra. We noted in Commonwealth v. McSorley, 335 Pa.Super. 522, 485 A.2d 15 (1984), affd per curiam, 509 Pa. 621, 506 A.2d 895 (1986), that successful completion of ARD is not equivalent to a finding of innocence. See Commonwealth v. McKellin, 9 D. & C.3d 572 (1979).

Given the analogous issues heretofore decided, it is clear that in certain circumstances consideration may be given to an individual’s participation in an ARD program. We believe that the criminal charges against appellee, even though disposed of through ARD, are relevant in this custody dispute.

Our research reveals that applicable cases exist wherein a parent seeking custody had a criminal record and the court properly considered it, although the court’s consideration of the record was not an issue in the cases. See, e.g., Ferencak v. Moore, 300 Pa.Super. 28, 36, 445 A.2d 1282, 1286 (1982) (“Nor can we or should we ignore [the mother’s] criminal record____”) and Commonwealth ex rel. Ruczynski v. Powers, 206 Pa.Super. 415, 212 A.2d 922 (1965), affd, 421 Pa. 2, 219 A.2d 460 (1966) (mother’s criminal record involving moral turpitude may be examined and evaluated by the courts in attempting to determine her probable future actions”).

[367]*367Similarly, there are cases in which a parent seeking custody was romantically involved with someone who had a criminal record. For example, Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981), involved a custody dispute between the paternal grandmother and the natural mother. In affirming the trial court’s award of custody to the grandmother, this court stated, “[T]he factor which tipped the scales in favor of awarding custody to the grandmother was the fact that the mother chose to live with ... a man with several convictions for violent crimes.” Id., 284 Pa.Superior Ct. at 468, 426 A.2d at 142.

It is clear that a custody court has an obligation to consider all relevant factors that could affect the child’s well being, as its paramount concern is the child’s welfare and best interests. Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985). In this case, we are not concerned with idle gossip or unsubstantiated allegations. Rather, this case involves appellee’s arrest for charges of indecent exposure following an investigation, the charges being held for court following the establishment of a prima facie case, and his election to participate in ARD. See also Commonwealth v. Becker, 366 Pa.Super. 54, 63, 530 A.2d 888

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DeNillo v. DeNillo
535 A.2d 200 (Supreme Court of Pennsylvania, 1987)

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Bluebook (online)
535 A.2d 200, 369 Pa. Super. 363, 1987 Pa. Super. LEXIS 9758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denillo-v-denillo-pa-1987.