Instruction 6.400, Criminal Model Jury Instructions for Use in the District Court

CUSTODIAL INTERFERENCE BY RELATIVE

This instruction is drafted under the felony branch of G.L. c. 265, § 26A. It may be adapted for the

misdemeanor branch of the same offense by eliminating the fifth element and the corresponding

statutory language.

The defendant is charged with having violated section 26A of chapter

265 of our General Laws, which provides as follows:

“Whoever, being a relative of a child less than eighteen years

old,

without lawful authority,

holds or intends to hold such a child permanently or for a

protracted period,

or takes or entices such a child from his lawful custodian. . . .

[and does so] by taking or holding [the] child

(outside the Commonwealth)

(or) (under circumstances which expose the [child] taken

or enticed from lawful custody to a risk which

endangers his safety)

shall be punished. . . .”

In order to prove that the defendant is guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant is a relative of the child involved;

Second: That the child was less than 18 years of age at the time;

Third: The Commonwealth must prove either that the defendant held

or intended to hold the child permanently or for a protracted period, or that

the defendant took or enticed the child from his (her) lawful custodian;

Fourth: The Commonwealth must prove that the defendant did so

without lawful authority; and

Fifth: The Commonwealth must prove that the defendant either took

or held the child outside Massachusetts or did so in a way which exposed

him (her) to a risk which endangered his (her) safety.