T.P.I. -- CRIM. 8.04

CUSTODIAL INTERFERENCE

            Any person who commits the offense of custodial interference is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

            (1)  that the defendant knowingly detained or moved the [child] [individual

                   adjudged to have been incompetent] from the vicinity where the

                   [child] [person adjudged to have been incompetent] was found;

and

            (2)  that [the child was younger than eighteen (18) years] [the individual

                   was adjudged to have been incompetent]²;

and

            (3)  that the defendant knew the detention or moving of [the child] [person

                   adjudged to have been incompetent] violated a temporary or

                   permanent judgment or court order regarding the [child's]

                   [incompetent's] custody or care;

and

            (4)  that the defendant was related to the [child] [incompetent individual]

                   as a natural or adoptive parent, step-parent, grandparent, brother,

                   sister, aunt, uncle, niece or nephew.

            "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.³

            The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.⁴

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.⁵

            ["Incompetent" means a person who is in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, advanced age, developmental disability, or other mental or physical incapacity.]⁶

FOOTNOTES

1.  Tenn. Code Ann. § 39-13-306(a).

2.  Members of the Committee are of the opinion that the issue of adjudication of

     incompetency is a question of law for the Court.  If the issue of incompetency

     is raised, the Court should consider charging that the victim had in fact been

     adjudicated incompetent and that the competence had not been restored.

3.  Tenn. Code Ann. § 39-11-106(a)(20).

4.  Tenn. Code Ann. § 39-11-301(a)(2).  

5.  Tenn. Code Ann. § 39-11-106(a)(18).

6.  The term "incompetent" is not defined in Title 39.  The Committee derived the

     definition from Tenn. Code Ann. § 34-4-102(2).

COMMENTS 

            1.  The offense of custodial interference shall be a Class E felony unless the person taken from lawful custody is returned voluntarily by the defendant, in which case custodial interference is a Class A misdemeanor.  Tenn. Code Ann. § 39-13-306(d).

            2.  It is a defense to custodial interference that the individual detained or removed in contravention of the order of custody or care was returned by the defendant voluntarily and before arrest or the issuance of warrant for arrest.  Tenn. Code Ann. § 39-13-306(b).  See T.P.I. -- CRIM. 40.11(Defense: Voluntary return of victim).

            3.  See A.G. Opinion # U92-15 (January 28, 1992) regarding criminal liability of a custodial parent or relative for custodial interference.