WPIC 39.21 Custodial Interference—First Degree—Relative—Elements

Use bracketed material as applicable. The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (2). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For the related jury interrogatory, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (2), revise the instruction to remove references to alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

Use WPIC 10.01 (Intent—Intentionally—Definition) with this instruction. Use WPIC 19.12 (Custodial Interference—Defense) with this instruction if the statutory defense set forth in RCW 9A.40.080 is asserted. Use WPIC 39.32 (Relative—Definition) if a definition of relative will assist the jury.

For a discussion of the phrase “any of these acts” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction) and WPIC 190.10 (Special Verdict Form—Jurisdiction).

RCW 9A.40.060.

In State v. Carver, 113 Wn.2d 591, 781 P.2d 1308 (1989), the Supreme Court held that RCW 9A.40.060 is not unconstitutionally vague. The court found that the statute is constitutional both on its face and as it applied to the defendant.

RCW 9A.40.010(3) defines the word “relative” as “an ancestor, descendant, or sibling, including a relative of the same degree through marriage or adoption, or a spouse.” A parent therefore may be found guilty of first degree custodial interference. State v. Ohrt, 71 Wn.App. 721, 862 P.2d 140 (1993).

“Lawful right to physical custody” refers to the court-designated custodian of a child when a parenting plan has been entered. State v. Kirwin, 166 Wn.App. 659, 667, 271 P.3d 310 (2012). Holding a child for a “protracted period” means “a lengthy or unusually long time under the circumstances.” What constitutes a protracted period is highly dependent on context. State v. Cline, 180 Wn.App. 644, 653–54, 323 P.3d 614 (2014) (infant taken surreptitiously for a weekend at request of parent whose visitation was limited). Appropriate definitional instructions may need to be drafted if these issues are contested.

As long as the relative takes a child from a parent or other lawful custodian with the intent to deny such custodian access to the child, and either intends to hold the child permanently or causes the child to be removed from the state of residence, the right of the relative to custody of the child is irrelevant. State v. Ohrt, 71 Wn.App. at 726–27.

In State v. Boss, 167 Wn.2d 710, 719–20, 223 P.3d 506 (2009), the Washington Supreme Court held that knowledge of the existence of a custody order is inherent in the intent element of the offense. “A person cannot ‘intentionally’ commit first degree custodial interference without being on notice of the underlying order.” It is up to the jury to decide whether the “lawful right to custody” has been proved. In Boss, it was an improper comment on the evidence to give an instruction stating that a particular agency had the lawful right to custody.