New Mexico Domestic Violence Law Details
ZERO TOLERANCE AND IMMEDIATE PROTECTION FOR YOU and YOUR CHILDREN The New Mexico Financial Law lead by Don Harris knows that Domestic Violence is a crime and if you are being abused we will immediately assist you in preparing and executing a safety plan for yourself and for your children. As your advocates , our firm will take immediate legal actions to gain all of the protections the laws of New Mexico afford. Your safety and that of your children is paramount to our firm! One legal tool that will be implemented if appropriate, is an Order of Protection.
If you are in a relationship involving domestic violence and believe you are in immediate danger you should call 911 and, once you are safe, please call or contact our firm immediately.
On this page you will find important information in the following areas regarding Domestic Violence Law in New Mexico.
- What is Domestic Violence
- Scope and Content of an Order of Protection
- Dismissal of an Order of Protection
- Enforcing an Order of Protection
- Consequences of a Finding of Domestic Abuse
- Order of Protection Not a Permanent Solution
- Domestic Violence Common Myths
- Domestic Violence Law in New Mexico
- Filing an Application for an Order of Protection
- DV Commissioner’s Review of Petition for an Order of Protection
- Jurisdiction and Venue
- Service of the Temporary Order of Protection.
What is Domestic Violence (Domestic Abuse)?
Generally, domestic violence is a pattern of controlling and aggressive behaviors from one adult towards another within the context of an intimate relationship.
- It can be physical, sexual, psychological or emotional abuse. Financial abuse and social isolation are also common features.
- The violence and abuse can be actual or threatened and can happen once every so often or on a regular basis.
- The abuser can be either gender.
- It can happen to anyone, and in all kinds of relationships
- People suffer domestic violence regardless of their social group, class, age, race, disability, sexuality or lifestyle.
- The abuse can begin at any time – in new relationships or after many years spent together.
- Most frequently men are the abusers in a relationship
- Less frequently but still wholly unacceptable, men are abused by their partners, both male and female.
- Children are affected by domestic violence both in the short and the long term.
- All forms of abuse – psychological, economic, emotional and physical – come from the abuser’s desire for power and control.
Domestic Violence Common Myths
There are lots of myths and stereotypes about domestic violence. The facts are very different.
- She could just leave
- It mainly happens to poor women
- It’s alcohol that causes men to be violent
- Abused women must have done something to deserve it
- Certain women attract violent men
- Abusers were abused themselves
- Violent men can’t change
- Domestic violence is quite rare
- If children don’t see the violence, they won’t be affected
- You shouldn’t get involved in other people’s rows
Domestic Violence Law in New Mexico
The Domestic Violence Division adjunct of the Family Court in the Second Judicial District of New Mexico is comprised of one District Judge and three Domestic Violence Commissioners. Other New Mexico judicial districts have similar makeups.
The Domestic Violence Division is responsible for the administration of the New Mexico Family Violence Protection Act, §§ 40-13-1 et seq., NMSA, 1978 Comp. (1999). “Domestic abuse” is defined as any incident by a household member against another household member resulting in:
- physical harm;
- severe emotional distress;
- bodily injury or assault;
- a threat causing imminent fear of bodily injury by any household member;
- criminal trespass;
- criminal damage to property;
- repeatedly driving by a residence or work place;
- telephone harassment;
- harassment; or
- harm or threatened harm to children as set forth above.
Filing an Application for an Order of Protection
There are no fees for filing any action pursuant to the Family Violence Protection Act, nor is a victim of domestic abuse required to be represented by an attorney. The statute provides that an alleged victim is not required to pay the cost of:
- filing a criminal charge against an alleged abusing household member;
- the issuance or service of a warrant;
- the issuance or service of a witness subpoena; or
- the issuance or service of a protection order.
The process for obtaining a Temporary Order of Protection can take as long as three hours to complete. The Clerk’s office accepts petitions between 9:00 a.m. and 11:00 a.m., and 1:00 p.m. and 3:00 p.m. Monday through Friday. Emergency Orders of Protection are available through a law enforcement officer after hours, on weekends and holidays when the Court is closed. The Domestic Violence Office is located on the second floor of the Courthouse.
The individual seeking the Court’s protection is referred to as the “petitioner” and is required to complete in the English language a Petition for Order of Protection, which must be signed in the presence of a notary public. If an interpreter is required for Petitioner, Respondent or both, a request should be made for an interpreter on the space provided on the Petition. Although the Court may not have bilingual personnel at the Clerk’s Office, the Court has produced and has available for showing upon request a Spanish language video explaining the process in Spanish and listing community organizations available to assist non-English speaking victims. If a victim of domestic violence requires assistance to translate from Spanish to English for purposes of completing a Petition for Order of Protection, the victim should contact one of the community organizations offering those services without charge. Spanish language forms of a Petition for Order of Protection are available in downloadable form in the “Forms” component of the Family Law Library of this website. The Clerk has a copy of those organizations, which provide services without charge. Once a Petition for an Order of Protection has been completed, a DV Commissioner reviews the Petition to determine whether allegations qualify for the issuance of an Order of Protection under the Family Violence Protection Act.
DV Commissioner’s Review of Petition for an Order of Protection
The DV Commission’s first task in examining a Petition for Order of Protection is to determine whether the relationship between the parties (alleged victim and abuser) are “household members” according to the statutory definition. In other words, whether they are either spouses, former spouses, family members, (including relatives, parents, present or former stepparents, present or former-in-laws, child or co-parents of a child), or a person with whom the Petitioner has had a continuing personal relationship. The alleged victim and abuser need not reside with one another in order to meet the statutory definition of “household members”. A parent or guardian ad litem my file a Petition for Order of Protection on behalf of an incompetent adult or a minor, if the “household member” test is not met by the allegations of the Petition for Order of Protection, the DV Commissioner will decline to issue a Temporary Order of Protection.
Next, the DV Commissioner makes a determination whether the alleged act of domestic abuse occurred within thirty (30) days preceding the date the Petition for Order of Protection is filed. If not, the DV Commissioner will decline to issue a Temporary Order of Protection unless the DV Commissioner or the Court for “good cause” waives the thirty (30) day time limit. If it is unclear on the face of the Petition for Order of Protection whether the relationship between the parties or the allegations of domestic abuse meet the requirements for the issuance of a Temporary Order of Protection, the Court may serve notice upon the parties and hold a hearing within seventy-two hours after the filing of the Petition for Order of Protection to obtain clarification.
Jurisdiction and Venue
Subject matter jurisdiction over requests for orders of protection in family violence cases is dependent upon the occurrence of an incident of domestic violence (defined above) in New Mexico or the presence of a danger to the petitioner in New Mexico, whether or not incidents of domestic violence occurred within the jurisdiction.
Personal jurisdiction over the respondent is based on the fact that an act of domestic abuse was committed in New Mexico. Jurisdiction lies in any state where any part of the act occurred, whether or not any of the parties actually resides there. Under certain circumstances, telephone calls placed to a petitioner in New Mexico from a respondent in another state may give personal jurisdiction over the respondent.
Venue (where the hearing on the petition may be held) is in the district court of the county where the petitioner or respondent resides, or where the act of domestic abuse occurred.
Service of the Temporary Order of Protection
If the Temporary Order of Protection is granted, the Petitioner will file the paperwork with the Domestic Relations Clerk at the courthouse, Room 240, then take the paperwork to the Bernalillo County Sheriff’s Office at 400 Roma NW, Room 150, to be served on the Respondent (person who is accused of committing domestic violence or abuse). In order to be enforced against the Respondent, the Temporary Order of Protection must be personally served on the Respondent. If law enforcement is unable to serve the Respondent, any person over eighteen (18) can serve the Respondent, other than the Petitioner. If someone other than a law enforcement officer serves the Respondent, that person must sign and file an “Affidavit of Service,” which must be notarized. The form is available at the Domestic Violence office.
When the Temporary Order of Protection is granted; a hearing date will be set. This hearing is mandatory and each party must attend. Be on time for all hearings. If you are late, the Petition may be dismissed if you are the Petitioner, or a bench warrant may issue for your arrest if you are the Respondent.
Children are not allowed into the hearing rooms without the permission of the Court. If you must bring children to courthouse for a hearing, bring someone with you who can watch the children If the Petitioner does not attend the hearing, the Petition will be dismissed. If the Respondent has been served with the Temporary Order of Protection and does not appear for the hearing, an Order of Protection may be entered by default and a bench warrant may be issued for the arrest of the Respondent. Either party is entitled, however, to representation an attorney of their own choice at their exclusive expense at the hearing.
Both parties should make advance arrangements for the presence of all witnesses; police reports, medical records concerning injuries received, medical bills for treatment received as a result of the injuries, and photographs of injuries or other damage caused by the respondent.
If the petitioner requests support for children of the parties or support for the petitioner; both parties must bring evidence of income to the hearing.
Scope and Content of an Order of Protection
The Court may award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the petitioner on a basis that gives primary consideration to the safety of the victim and the children.
The Court may grant sole possession of the residence to the petitioner during the period the order of protective is effective or order the respondent to provide temporary suitable alternative housing for the petitioner.
The Court may order the respondent to reimburse the petitioner or any other household member for expenses reasonably related to the occurrence of domestic abuse and may order the respondent to participate in, at the respondent’s expense, professionally counseling programs.
Dismissal of an Order of Protection
If the Petitioner decides to dismiss the Temporary Order of Protection, the parties must still appear at the hearing. The Petitioner will tell the Court why a Temporary Order of Protection is no longer needed and the Commissioner will decide whether to dismiss the Order. If the Petitioner decides to dismiss an Order of Protection entered after a hearing, the Petitioner must come to the Domestic Violence office and fill out a motion asking the Court to dismiss the Order and state the reasons why the Order should be dismissed. Again, the Commissioner will decide whether to dismiss the Order. The parties should never ignore an Order of Protection. There should be no contact between the Petitioner and Respondent unless the Court has dismissed the Order.
Enforcing an Order of Protection
The Petitioner should keep a copy of the Order of Protection with him or her at all times. The Petitioner should inform family, friends, neighbors, the children’s school and the doctor or health care provider that there is an Order of Protection in effect. If the Respondent makes physical contact with the Petitioner in violation of the Order, the Petitioner should immediately call the police at 911. If the Respondent violates the Order in other ways, e.g., by calling or writing to the Petitioner, the Petitioner may file at the Domestic Violence office a motion alleging violation of the Order of Protection. The Respondent must be personally served with the motion and an Order to Appear. The Court will hold a hearing on the motion and will make a ruling whether the Order has been violated. If the Court finds that the Respondent has violated the Order, the Court may fine the Respondent, send the Respondent to the Metropolitan Detention Center or do whatever the Court determines is necessary to punish the violation.
Consequences of a Finding of Domestic Abuse
An Order of Protection entered after a hearing, with a finding that an act of domestic was committed that necessitates an order of protection, will be registered with the National Crime Information Center (NCIC). Violations of this order by the person against whom it was entered can have serious consequences, including:
- If you violate the terms of this order, you may be charged with a misdemeanor, which is punishable by imprisonment of up to 364 days and a fine of up to $1,000. You may also be found in contempt of court.
- If you are the spouse of former spouse of the other party, an individual who cohabits or has cohabitated with the other party, or if you and the other party have had a child together, federal law prohibits you from possessing or transporting firearms or ammunition while this order is in effect. If you have a firearm or ammunition, you should immediately dispose of the firearm or ammunition. Violation of this law is a federal crime punishable by imprisonment for up to 10 years and a fine of up to $250,000.
- If you are not a citizen of the United States, entry of this order may have a negative effect on your application for residency or citizenship. Violation of this order will almost certainly have a negative effect on your application for residency or citizenship and may result in your deportation. (See 8 USC Section 1227)
- If you are required to have a security clearance for your present job, or if you apply for a job in the future that requires a security clearance, entry of this order may have a negative effect on your job eligibility. Violation of this order may result in the revocation of your security clearance, or may prohibit you from obtaining a security clearance, depending upon the circumstances of the violation. (See 10 C.F.R. 710)
Order of Protection Not a Permanent Solution
This process is not a permanent solution, particularly if the parties have children together. If you are married and have not yet done so, you may want to consider filing a Petition for Dissolution of Marriage (Divorce). If you are not married but have a child or children with the other party, you may want to consider filing a Petition to Establish Paternity, Custody, Visitation and Child Support.
Either party may file this Petition. You may consult with a lawyer, contact the Pro Se Division on the second floor of the courthouse for a forms packet to represent yourself without a lawyer, or contact Legal Aid at 243-7871 to see if you qualify for services based on your income.