How can I get an order of protection against my abusive spouse?

Domestic abuse is tragically all-too-common in the state of New Mexico and across the country. According to the non-profit S.A.F.E. House, 17,757 domestic violence-related incidents were reported in New Mexico in 2015. Researchers also estimate that this number represents just one in 10 actual abuse cases, with the remainder going unreported.

When you are facing threats, physical assault, sexual assault, emotional abuse, or any other acts that you feel endanger you, your children, or your household, the best course of action is to act fast to obtain an order of protection. Orders of protection are granted on the basis of a qualifying domestic violence incident, which can pertain to a spouse or relationship partner even if they are not cohabitating with the person they are abusing.

You can request an emergency protection order following an incident that has been reported to the police. A judge may also grant a temporary protection order (TPO) followed by a permanent protection order if they feel you or others are in danger.

There is no fee for requesting an order of protection, and you are allowed to file for one completely on your own. However, working with a New Mexico family law attorney can help you prepare a compelling argument backed by evidence, and it can also help you counter any strategizes your abusive partner is using to try and evade consequences.

What Is Considered Domestic Abuse in New Mexico?

New Mexico law (N.M.A.S. §40-13-2) defines “domestic abuse” as any situation involving stalking or sexual assault or any incident involving criminal activity conducted by a “household member” against another household member. A “household member” can include any spouse, relationship partner, or co-parent of the person being abused, regardless of whether or not they live together.

New Mexico statute §40-13-2 D (2) indicates that an act of domestic violence can consist of any incident that results in the following:

• (a) physical harm;
• (b) severe emotional distress;
• (c) bodily injury or assault;
• (d) a threat causing imminent fear of bodily injury by any household member;
• (e) criminal trespass;
• (f) criminal damage to property;
• (g) repeatedly driving by a residence or workplace;
• (h) telephone harassment;
• (i) harassment; or
• (j) harm or threatened harm to children

The law allows for exceptions in cases of self-defense, and it also may not consider acts that occur when two individuals appear to have engaged in open conflict with one another. These caveats open up the potential for an abuser to allege that they were the victim or that both parties engaged in the same sort of acts, forcing the person petitioning for an order of protection to establish the exact facts, what happened, and why they feel they or their children are in danger.

Two Primary Types of Orders of Protection for Domestic Abuse Survivors

There are two main types of orders of protection that can be used in the event of a domestic abuse incident: an emergency order, a temporary protection order, and a permanent protection order..

Temporary Protection Order (TPO)

A temporary protection order is typically issued when the person requesting it wishes to schedule a hearing for a permanent protection order. However, the TPO may also be granted in situations where the abuse victim feels they are in imminent danger and need protections to address the situation. Importantly, the person filing for protection will not need a formal hearing and they will not need to notify the abuser in order for the order to proceed.

When a hearing for the issuing of a ongoing protection order is scheduled, it will typically be held within the next 10 business days. The abuser will be notified, in this instance, but not before a TPO has already been issued.

A TPO offers the following protections:

• The abuser is forbidden from contacting you except through your attorney
• The abuser may stay away from places you or your children frequent, including your home, place of work, the children’s school, etc.
• The abuser is forbidden from committing further acts of abuse, including through threats or intimidation
• Children will not be allowed to be removed from the state or disenrolled from school by either parent
• If the abuser is leaving the family home, they must surrender their keys to law enforcement; if the protected person is leaving the home, they must be allowed to obtain their belongings with a police escort
• The protected person will receive temporary custody of children, and the abuser may not contact them or interact with them
• Child support and temporary support may be issued for the protected person, as appropriate, if they lack resources

(Ongoing) Order of Protection

After a Temporary order of protection is granted, the parties may go to court to obtain an actual “Order of Protection.”  Sometimes people refer to this as an “Ongoing” order of protection, or a “Permanent” Order of protection (although it is almost never permanent).  The best way to conceive of this is that it is at this point an “Actual” Order of Protection, rather than a Temporary one.  In rare cases, if children are not involved, a court may make an order of protection permanent.  Normally, the Court will limit it to a number of years.

An order of protection involving children may only last six months.  The Courts want the family court to deal with custody in an orderly fashion, not through domestic violence court.

An ongoing order of protection may only be issued after a hearing in which a presiding judge is able to hear from both the petitioner and the abuser. If the person requesting protection can convince the judge that their need has merits, then the judge will issue an indefinite order if there are no children. If there are children, temporary custody will be awarded to the protected parent, and a hearing date will be set for six months later to determine if renewing the order is needed.

An actual, ongoing order of  protection order will involve all of the above protections of a temporary order in addition to the following protections, which may be included:

• The abuser is ordered to not destroy, hide, donate, or otherwise prevent you from obtaining your belongings
• Temporary sole custody may be awarded, and the court will determine if child support and a visitation schedule are appropriate
• The abuser must pay any expenses resulting from their abuse, including medical bills, counseling costs, the costs of temporary shelter, compensation for repair/replacement of damaged property, and lost wages resulting from missed work.
• The abuser will be ordered to attend counseling, and the protected person may be also ordered to attend counseling for victims
• The abuser will be evicted from the family home, or they may be ordered to provide a temporary residence for the protected person
• The abuser must surrender any firearms they possess and may not purchase additional firearms during the duration of the protection order

Note that these protections are issued on an as-necessary basis, so it is up to the judge’s discretion as to what is included in the order. The petitioner should, therefore, be highly specific about the types of risks they feel they face and what protections they would need to be issued to feel safer.

Getting Away From an Abuser Is Hard, But New Mexico Family Law Attorneys Can Help

No one deserves abuse, and abusers will often do whatever is in their power until someone or something ultimately stands in their way. At New Mexico Financial & Family Law, we understand the urgency, terror, and lasting harm that can result from these situations. We are available to help you obtain a protection order and extend the order as-needed so that you and your family can feel safe. We can also provide you with a New Mexico divorce attorney if you feel severing the relationship permanently is the best way forward.

You deserve help, support, and most of all someone to listen. We are here. Schedule a confidential consultation when you call (505) 503-1637 or contact us online to speak with an experienced domestic violence lawyer who is ready to listen and ready to help you feel safer.