Commonwealth v. Gonzalez

The defendant was indicted in December, 2008, pursuant to G. L. c. 265, § 26A (parental kidnapping statute), after his five year old nonmarital son,1 whom we shall call G.G., disappeared while in the defendant’s care.2 Relying on *460Commonwealth v. McCarthy, 385 Mass. 160 (1982), the defendant filed a motion to dismiss the indictment (McCarthy motion). The thrust of the defendant’s argument was that the Commonwealth could not prove, as it must under the parental kidnapping statute, that he acted “without lawful authority” in allegedly taking G.G. To the extent the Commonwealth relied on G. L. c.…