I get a lot of questions from people asking how they can go about getting an order of protection from domestic abuse. There's a lot of rumors and "common knowledge" out there about TRO's and Orders of Protection. Here's the law taken from Section 40-13-3 NMSA 1978 commonly called the Family Violence Protection Act:
A. A victim of domestic abuse may petition the court under the Family Violence Protection Act [40-13-1 NMSA 1978] for an order of protection.
B. The petition shall be made under oath or shall be accompanied by a sworn affidavit setting out specific facts showing the alleged domestic abuse.
C. The petition shall state whether any other domestic action is pending between the petitioner and the respondent.
D. If any other domestic action is pending between the petitioner and the respondent, the parties shall not be compelled to mediate any aspect of the case arising from the Family Violence Protection Act [40-13-1 NMSA 1978] unless the court finds that appropriate safeguards exist to protect each of the parties and that both parties can fairly mediate with such safeguards.
E. An action brought under the Family Violence Protection Act [40-13-1 NMSA 1978] is independent of any proceeding for annulment, separation or divorce between the parties.
F. Remedies granted pursuant to the Family Violence Protection Act [40-13-1 NMSA 1978] are in addition to and shall not limit other civil or criminal remedies available to the parties.
G. Standard simplified petition forms with instructions for completion shall be available to all parties. Law enforcement agencies shall keep such forms and make them available upon request to alleged victims of domestic abuse.
The Temporary Order of Protection is most likely issued once the petition is reviewed and grounds are found. The District Court will then schedule a hearing as soon as possible to determine whether the Order of Protection should be extended or other possible remedies. The Order can also be vacated (canceled).
The parties can either come to an agreement or series of agreements called stipulations or the hearing may commence or continue dependent upon the situation. If the Court or hearing officer determine that there's a finding of domestic abuse or similar, the Court will issue a report and Order. The Order will contain:
40-13-5 Order of protection; contents; remedies; title to property not affected; mutual order of protection A. Upon finding that domestic abuse has occurred or upon stipulation of the parties, the court shall enter an order of protection ordering the restrained party to refrain from abusing the protected party or any other household member. The court shall specifically describe the acts the court has ordered the restrained party to do or refrain from doing. As a part of any order of protection, the court may:
(1) grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;
(2) award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;
(3) order that the restrained party shall not initiate contact with the protected party;
(4) restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party's property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;
(5) order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;
(6) order the restrained party to participate in, at the restrained party's expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and
(7) order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies as provided by this section.
B. The order of protection shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine or imprisonment or both.
C. If the order of protection supersedes or alters prior orders of the court pertaining to domestic matters between the parties, the order shall say so on its face. If an action relating to child custody or child support is pending or has concluded with entry of an order at the time the petition for an order of protection was filed, the court may enter an initial order of protection, but the portion of the order dealing with child custody or child support will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action.
D. A mutual order of protection shall be issued only in cases where both parties have petitioned the court and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.
E. No order issued under the Family Violence Protection Act [40-13-1 NMSA 1978] shall affect title to any property or allow a party to transfer, conceal, encumber or otherwise dispose of another party's property or the joint or community property of the parties.
F. Either party may request a review hearing to amend an order of protection. An order of protection involving child custody or support may be modified without proof of a substantial or material change of circumstances.
G. An order of protection shall not be issued unless a petition or a counter petition has been filed.
As we close, I want to add a piece on the legal definitions of terms as used in the statute:
As used in the Family Violence Protection Act:
A. “continuing personal relationship” means a dating or intimate relationship;
B. “co-parents” means persons who have a child in common, regardless of whether they have been married or have lived together at any time;
C. “court” means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;
D. “domestic abuse”:
(1) means an incident of stalking or sexual assault whether committed by a household member or not;
(2) means an incident by a household member against another household member consisting of or resulting in:
(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 work place;
(h) telephone harassment;
(i) harassment; or
(j) harm or threatened harm to children as set forth in this paragraph; and
(3) does not mean the use of force in self-defense or the defense of another;
E. “household member” means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;
F. “mutual order of protection” means an order of protection that includes provisions that protect both parties;
G. “order of protection” means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;
H. “protected party” means a person protected by an order of protection; and
I. “restrained party” means a person who is restrained by an order of protection.
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