Custodial Interference by Relative

According to the United States Department of Health, Massachusetts ranked highest in the number of confirmed cases of child abuse and neglect in 2007-2009. In order for Massachusetts to protect the innocence of children, the Commonwealth regards cases concerning children very seriously and imposes harsh penalties on those who abuse, neglect, or engage in the mistreatment of youth. Massachusetts General Laws c. 265, § 26A dictates that anyone related to a child less then eighteen years old who holds or intends to hold a child permanently or for a protracted period without lawful authority, or takes or entices a child from his lawful custodian, or takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution is subject to the following penalties:
  • Imprisonment in house of correction for no longer than one year, and/or
  • By a maximum fine of $1,000.
If during the commission of this crime, the offender takes the child outside the limits of the Commonwealth, or subjects the child to circumstances that endangers the safety of the child, they are punishable by:
  • Maximum imprisonment in the state prison: 5 years, and/or
  • Maximum fine of $5,000.
To gain a conviction against a defendant charged with Custodial Interference by a Relative, the prosecution must be able to prove five things. First, they must be able to prove that the defendant is a relative of the child involved. Second, the child must have been under the age of 18 years old at the time of the alleged incident. Third, the Commonwealth must prove either that the defendant held or intended to hold the child, or that the defendant took or enticed the child from his or her lawful custodian. Fourth, they must be able to prove that the defendant had no legal authority to do so. And finally, the fifth elements requires the prosecution to show that the defendant either took the child outside Massachusetts, or did so in way which exposed him or her to a risk which posed a risk to the child’s safety.

This crime is based on the contention that the defendant had no legal right or authority to take or hold the child for a period of time. Modern matters of wedlock and divorce raise a question as to who does in fact have a legal right. Massachusetts G.L. c. 208, § 31 provides that prior to the settlement of any controversy involving the custody of a child, both parents shall have equal legal custody. The legal custody of a child is reserved solely for the Mother in cases concerning the paternity of the child. Furthermore, a parent who has legal custody of a child can be charged with the crime of Custodial Interference by a Relative if that parent interferes with the visitation or joint custody rights of the other parent.  Commonwealth v. Beals set forth that if there are no pending proceedings concerning the marriage, divorce, or custody of the child, a parent cannot be charged with this crime if one parent takes the child outside the limits of Massachusetts. If however, the parents are legally divorced, both parents must consent to the child leaving Massachusetts if the child is a resident of the Commonwealth, unless the court can show cause otherwise.

Adept Boston Area Criminal Defense Attorney
The Law Office of Patrick J. Murphy is committed to the pursuit of justice in sensitive criminal matters. Criminal defense is becoming more sophisticated in response to the increasing prevalence of law enforcement and the tightening of control in this country. At all stages of the criminal proceedings, The Law Office of Patrick J. Murphy provides a vigorous defense against charges such as Custodial Interference by a Relative. Attorney Murphy’s background in family law and child-related issues give The Law Office of Patrick J. Murphy the clear advantage when providing criminal defense to his clients. Contact the Law Office of Attorney Patrick J. Murphy 24/7 for a free legal assessment of your case, by calling 617-367-0450 or completing the contacts tab on our website.

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