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WPIC 19.12 Custodial Interference—Defense

11 WAPRAC WPIC 19.12Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.12 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part IV. Defenses

WPIC CHAPTER 19. Special Statutory Defenses

WPIC 19.12 Custodial Interference—Defense

It is a defense to a charge of custodial interference in the [first] [second] degree, that:

[the defendant's purpose was to protect [the child] [the incompetent person] [himself] [herself] from imminent physical harm, that the belief in the existence of the imminent physical harm was reasonable, and that the defendant sought the assistance of the police, sheriff's office, protective agencies, or the court of any state before committing the acts giving rise to the charges or within a reasonable time thereafter] [or]

[(name of person) had, prior to the defendant committing the acts giving rise to the crime, for a protracted period of time, failed to exercise [his] [her] rights to physical custody or access to the child under a [court-ordered parenting plan] [or] [court order granting visitation rights] [or] [court order making residential provisions for the child], provided that such failure was not the direct result of the defendant's denial of access to such person] [or]

[the acts giving rise to the charges were consented to by (name of person) ] [or]

[the defendant, after providing or making a good faith effort to provide notice to (name of person), failed to provide access to the child due to reasons that a reasonable person would believe were directly related to the welfare of the child, and allowed access to the child in accordance with the court order within a reasonable period of time].

The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].

NOTE ON USE

Use this instruction if the defendant is charged with custodial interference in the first or second degree and the statutory defense is in issue.

Use bracketed material as applicable.

See the Comment below for a discussion of the burden of proof on this defense.

COMMENT

RCW 9A.40.080.

RCW 9A.40.080(2)(d) provides that it is a defense if:

The offender, after providing or making a good faith effort to provide notice to the person entitled to access to the child, failed to provide access to the child due to reasons that a reasonable person would believe were directly related to the welfare of the child, and allowed access to the child in accordance with the court order within a reasonable period of time. The burden of proof that the denial of access was reasonable is upon the person denying access to the child.

The statute does not specify the quantum of proof required to meet this burden. Presumably, the burden of proof for this alternative is a preponderance of the evidence, because under RCW 9A.40.080(2) the defense as a whole must be established by the defendant by a preponderance of the evidence.

For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).

In 2015, in response to State v. Veliz, 176 Wn.2d 849, 298 P.3d 75 (2013), the Legislature replaced the phrase “court-ordered parenting plan” in both custodial interference in the first degree (RCW 9A.40.060) and custodial interference in the second degree (RCW 9A.40.070), with the phrase “court order making residential provisions for the child.” See Laws of 2015, Chapter 38. The instruction has been amended to mirror the change. The Legislature did not amend RCW 9A.40.080 establishing an affirmative defense to custodial interference to contain the same language. Therefore, the defense still references “a court-ordered parenting plan.” RCW 9A.40.080(b). The trial court will have to make a determination as to the proper manner of instructing a jury on this defense. For this reason, the WPI Committee has included bracketed language consistent with the amendment to RCW 9A.40.060 and RCW 9A.40.070, as well as the language used in RCW 9A.40.080.

A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party that presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).

Caution. Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).

[Current as of May 2019.]

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