Fla. Std. Jury Instr. (Crim.) 9.3(b)

A COURT ORDER

§ 787.03(2), Fla. Stat.

To prove the crime of Interference with Custody in the Absence of a Court Order, the State must prove the following five elements beyond a reasonable doubt:

1. (Defendant) took, detained, concealed, or enticed away (victim).

2. (Defendant) did so with malicious intent to deprive another person of [his] [her] right to custody of (victim).

3. At the time, (defendant) was a [natural or adoptive parent of (victim)] [stepparent of (victim)] [legal guardian of (victim)] [relative of (victim) who had custody of (victim).

4. At the time, there was no court order determining rights to custody or visitation with (victim).

5. At the time, (victim) was [a person under 18 years of age] [an incompetent person].

In Lindemuth v. State, 247 So. 3d 635 (Fla. 3d DCA 2018), the appellate court held that a trial judge did not err by instructing on the following definition of “entice.”

“Entice” means to lure, induce, tempt, incite, or persuade a person to do a thing.

Give if applicable. § 787.001, Fla. Stat.

Ignorance of (victim’s) age is not a defense. Misrepresentation of (victim’s) age by any person or a genuine belief that (victim) was over a specified age is also not a defense.

Give if applicable. As of November 2025, it was unclear what definition of “incompetent person” applies to § 787.03, Fla. Stat. The definition below comes from

§ 941.38, Fla. Stat.

An incompetent person is a person who because of mental illness, intellectual disability, senility, excessive use of drugs or alcohol, or other mental incapacity is incapable of managing his or her property or caring for himself or herself or both.

§ 787.03(4), Fla. Stat. contains defenses that may be interpreted as affirmative defenses. If treated as affirmative defenses, one or more of the paragraphs below should be given only if the defendant satisfies his or her burden of producing evidence that supports the defense.

The statute and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had the burden of persuasion on affirmative defenses by a preponderance of the evidence. See Dixon v. United States, 548 U.S. 1 (2006). As of November 2025, in the absence of case law or a statutory change, trial judges must resolve the issue via a special instruction.

It is a defense to the crime of Interference with Custody in the Absence of a Court Order if (defendant) had reasonable cause to believe that [his] [her] action was necessary to preserve (victim) from danger to [his] [her] welfare.

It is a defense to the crime of Interference with Custody in the Absence of a Court Order if (defendant) was a victim of an act of domestic violence or had reasonable cause to believe that [he] [she] was about to become a victim of domestic violence and [he] [she] had reasonable cause to believe that the action was necessary in order for [him] [her] to escape from, or protect [himself] [herself] from, the domestic violence or to preserve (victim) from exposure to the domestic violence.

“Domestic violence” means (insert necessary definitions from § 741.28, Fla. Stat.).

It is a defense to the crime of Interference with Custody in the Absence of a Court Order if (victim) was taken away at [his] [her] own instigation without enticement and without purpose to commit a criminal offense with or against (victim) and (defendant) establishes that it was reasonable to rely on the instigating acts of (victim).

Lesser Included Offenses*

INTERFERENCE WITH CUSTODY IN THE ABSENCE OF A COURT ORDER — 787.03(2)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

False Imprisonment

787.02

9.2

Attempt*

777.04(1)

5.1