Conn. Crim. Jury Instr. 6.6-4

The defendant is charged [in count__] with custodial interference in the second degree. The

statute defining this offense reads in pertinent part as follows:

a person is guilty of custodial interference in the second degree when knowing that

(he/she) has no legal right to do so, (he/she) holds, keeps or otherwise refuses to

return a child who is less than sixteen years old to such child’s lawful custodian after

a request by such custodian for the return of such child.

For you to find the defendant guilty of this charge, the state must prove the following elements

beyond a reasonable doubt:

Element 1 - Kept child from lawful custodian

The first element is that the defendant held, kept or refused to return a child to the child’s lawful

custodian.

[<insert if applicable:> A refusal to return includes both affirmatively refusing to send or deliver

a child back to (his/her) lawful custodian or passively declining to take any affirmative action to

send or deliver a child back to (his/her) lawful custodian, after such custodian has requested the

return of the child. The law imposes an affirmative obligation on an individual to take some

action to comply with a custodian’s request for the return of a child.

2]

Element 2 - Child under 16

The second element is that this occurred prior to the child’s sixteenth birthday.

Element 3 - Knowledge of no legal right

The third element is that the defendant knew at the time of the incident that (he/she) had no legal

right to keep the child from (his/her) lawful custodian. A person acts “knowingly” with respect

to conduct or to a circumstance when (he/she) is aware that (his/her) conduct is of such nature or

that such circumstance exists. <See Knowledge, Instruction 2.3-3.>

Element 4 - Request for return

The fourth element is that the child’s lawful custodian had requested the return of the child.

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant held or kept a

child or refused to return a child to (his/her) lawful custodian, 2) the child was under 16 years of

age at the time, 3) the defendant knew that (he/she) had no legal right to keep the child from

(his/her) lawful custodian, and 4) the child’s lawful custodian had requested the return of the

child.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements

of the crime of custodial interference in the second degree, then you shall find the defendant

guilty. On the other hand, if you unanimously find that the state has failed to prove beyond a

reasonable doubt any of the elements, you shall then find the defendant not guilty.

1 If the legal custody of the child is an issue, the specific factual allegations may need to be

explained and/or a definition of lawful custodian provided which may vary with the

circumstances.

2 In State v. Lori T., 345 Conn. 44 (2022), the Supreme Court held that General Statutes § 53a-98

(a) (3) was not unconstitutionally vague as applied to the defendant and that the evidence was

sufficient to sustain her conviction. Specifically at issue was the requirement that a defendant

“otherwise [refuse] to return a child” to his or her lawful custodian when requested. When the

defendant’s minor children declined to leave with their father, their lawful custodian, after a

period of visitation with the defendant, the defendant refused to take any action to encourage

them to do so and, instead, stated that she wasn’t going to send them out of the house, that they

didn’t want to go and that she was going to do what the children wanted to do. The court

concluded that the defendant’s inaction and statements, under the circumstances, fell within the

core meaning of § 53a-98 (a) (3). Specifically, “the ‘otherwise refuses to return’ element of §

53a-98 (a) (3) applies, at its core, to a person who either affirmatively refuses to send or deliver a

child back to his or her lawful custodian or who [passively] declines to take any affirmative

action to send or deliver a child back to his or her lawful custodian, after such custodian has

requested the return of the child.” Id., 60. “In short, the defendant abrogated her parental

responsibility and allowed the children to decide whether to comply with the custody and

visitation order.” Id., 66. Although § 53a-98 (a) (3) does not require that an individual “compel”

a child to return to his or her lawful custodian, the individual must use efforts commensurate

with the situation, which “will vary and be dependent on any number of facts and considerations,

including, without limitation, the age of the child and the relationship between the individual and

the child.” Id., 60-61. For older children who cannot be physically moved, there is an obligation

to do something to effectuate their return, although a successful return may not be necessary to

satisfy the requirements of the statute. Id., 62.