DeNillo v. DeNillo , 369 Pa. Super. 363 ( 1987 )

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.

There 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. Krall, 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”).

Similarly, 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, 892 (1987) (“[I]t is also important to remember that a criminal suspect’s election of ARD is a voluntary decision.”) These are proper considerations for a court which bears the heavy responsibility of determining a child’s best interests.

The second issue is whether the hearing court erred in holding that the four criteria¹ set forth in In re Wesley J.K., supra, were met. We hold that the fourth criterion was not met.

Appellant argues that shared custody is inappropriate in the present case because the parties are unable to communicate and cooperate in promoting Sam’s best interests. In rejecting this argument, the hearing court stated, “This Court heard no credible evidence that the shared custody in this case was not in the best interest of the child.” Hearing court opinion at 10. This conclusion is belied by the record.²

At the first hearing, appellant testified that there is no communication between the parties. N.T., 4/24/84, at 15. She testified that if she asks a specific question, she sometimes gets an answer, and sometimes does not. Id. She testified to appellee’s refusal to cooperate in administering medicine, getting the child’s shots, and inconsistency in weaning the child from the bottle. Id. at 19-20, 29. Appellant testified that appellee “gives as little information as he has to. He answers the exact question but I get no further details.” Id. at 47. Appellant further testified that appellee has never questioned her nor shown any interest in “what goes on with the child” when Sam is in her custody. Id. Her testimony was supported by that of Dr. Douglas Ramm, a clinical psychologist, who provided vocational and academic guidance, and tangentially, advice on matters concerning custody. Id. at 63, 65.

Appellee, who testified at the August 21, 1984 hearing, also stated that there was no communication between the parties. N.T., 8/21/84, at 13. In response to questioning by the court, appellee admitted that he does not ask appellant about her care of Sam, and implied that he does not volunteer any information about Sam, when he stated, “Obviously she didn’t ask or I would have told her.” Id. at 38.

Appellee was even more candid at the March 3, 1986 hearing. Theretofore, appellee had desired to maintain the shared custody arrangement. N.T., 8/21/84, at 15. However, at the March 3 hearing, appellee stated he desired primary physical custody. Appellee testified, “We [the parties] don’t usually talk, it’s usually good-by Sammy or something in that order. Nothing between Michelle and I at all.” N.T., 3/3/86, at 22. Appellee claimed that he and appellant do not even communicate or cooperate concerning Sam’s medical problems. Id. at 23. The record is replete with examples of the parties’ inability to communicate regarding major concerns of their young child’s life, let alone discuss the small, day-to-day matters that arise.

This inability to communicate and the lack of even a minimal degree of cooperation between the parents is most strikingly seen in a matter brought to our attention at oral argument. Through either an inability or unwillingness to communicate and cooperate, young Sam has been enrolled in two different school districts since the beginning of the 1987-1988 school year. Counsel for the parties and even the hearing court itself must share the responsibility for this untenable situation.³

The Supreme Court of Pennsylvania, in Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987), recently reaffirmed the propriety of a broad and searching appellate review in custody cases. The court reiterated that a reviewing court must not accept a finding which has no competent evidence to support it. Id., citing Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

We hold that the trial court’s conclusion that it is in Sam’s best interest that physical custody be shared on alternating weeks is not based upon competent evidence, and such an order of custody represents an abuse of discretion.⁴ While it is necessary to remand for proceedings consistent with this opinion, we direct that such proceedings take place with the utmost dispatch. Shaffer v. Gaal, 312 Pa.Super. 399, 458 A.2d 1020 (1983); In re LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976).

The order of the hearing court is reversed, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

BECK, J., files a dissenting opinion.

1 . The four criteria set forth in In re Wesley J.K., supra, are: 1) both parents are fit, 2) both desire continuing involvement with their child, 3) both parents are seen by the child as sources of security and love, and 4) both parents are able to communicate and cooperate in promoting the child’s best interests. Id.., 300 Pa.Superior Ct. at 517, 445 A.2d at 1249.

2 . In attempting to illustrate how the record in this matter supports the hearing court’s finding that the parties exhibited the minimal degree of cooperation required to support a shared custody arrangement, the dissent reproduces portions of testimony offered at the March 24, 1984 hearing. Dissenting Opinion at 372-376. However, the most recent hearing in this matter was held two years later, on March 3, 1986. During that two year period, it is clear that the degree of communication trickled away to nothing, as revealed by appellee’s own testimony. N.T., 3/3/86, at 22, 23; infra at 376. Neither party considered the shared custody arrangement to be successful for the same reason: the parents simply could not communicate.

3 . It goes without saying that shared custody does not require equal physical custody. Dissenting opinion at 376. However, it is the present alternating weekly arrangement that we must evaluate and find supported by the record, not a hypothetical plan the hearing court may order in the future.

4 . We note that the continual decline in the parties’ ability to communicate constituted a substantial change in circumstances requiring reconsideration of the custody issue. Such a finding is a precursor to the court’s reconsideration of custody. “The reasons for the rule requiring a substantial change in circumstances are no less viable because the prior court order was entered without hearing and pursuant to agreement of the parties.” Burr v. Morgart, 339 Pa.Super. 341, 345, 488 A.2d 1155, 1157 (1985).