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Abuse Laws
New Mexico
2001
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New
Mexico Statutes
Chapter 40. Domestic Affairs
Article 13. Family Violence Protection.
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40-13-1.
Short title.
Chapter 40, Article 13 NMSA 1978 may be cited as the "Family
Violence Protection Act".
History: Laws 1987, ch. 286, § 1; 1999, ch. 142, §
1.
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40-13-2.
Definitions.
As used in the Family Violence Protection Act [this article]:
A.
"co-parents" means persons who have a child in common, regardless
of whether they have been married or have lived together at
any time;
B.
"court" means the district court of the judicial district where
an alleged victim of domestic abuse resides or is found;
C.
"domestic abuse" means any incident by a household member against
another household member resulting in:
(1)
physical harm;
(2)
severe emotional distress;
(3)
bodily injury or assault;
(4)
a threat causing imminent fear of bodily injury by any household
member;
(5)
criminal trespass;
(6)
criminal damage to property;
(7)
repeatedly driving by a residence or work place;
(8)
telephone harassment;
(9)
stalking;
(10)
harassment; or
(11)
harm or threatened harm to children as set forth in the paragraphs
of this subsection;
D.
"household member" means a spouse, former spouse, family member,
including a relative, parent, present or former stepparent,
present or former in-law, child or 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; and
E.
"order of protection" means a court order granted for the protection
of victims of domestic abuse.
History: Laws 1987, ch. 286, § 2; 1993, ch. 109, §
1; 1995, ch. 23, § 3.
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40-13-3.
Petition for order of protection; contents; indigent petitioners;
standard forms.
A. A victim of domestic abuse may petition the court under the
Family Violence Protection Act [this article] 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 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.
Any action brought under that act is independent of any proceeding
for annulment, separation or divorce between the petitioner
and the respondent.
F.
Any remedies granted are in addition to other available civil
or criminal remedies.
G.
If the petition is accompanied by an affidavit showing that
the petitioner is unable to pay the costs of the proceeding,
the court may order that the petitioner be permitted to proceed
as an indigent without payment of court costs. In determining
the financial status of the petitioner for the purpose of this
subsection, the income of the respondent shall not be considered.
H.
Standard simplified petition forms with instructions for completion
shall be available to petitioners not represented by counsel.
Law enforcement agencies shall keep such forms and make them
available upon request to victims of domestic violence.
History: Laws 1987, ch. 286, § 3; 1993, ch. 109, §
2.
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40-13-3.1.
Costs of criminal processes associated with domestic abuse offenses.
An alleged victim of domestic abuse shall not be required to
bear the cost of:
A.
filing a criminal charge against an alleged abusing household
member;
B.
the issuance or service of a warrant;
C.
the issuance or service of a witness subpoena; or
D.
the issuance or service of a protection order.
History: Laws 1995, ch. 176, § 1.
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40-13-3.2.
Ex parte emergency orders of protection.
A. The district court may issue an ex parte written emergency
order of protection when a law enforcement officer states to
the court in person, by telephone or via facsimile and files
a sworn written statement, setting forth the need for an emergency
order of protection, and the court finds reasonable grounds
to believe that the petitioner or the petitioner's child is
in immediate danger of domestic abuse following an incident
of domestic abuse by a household member. The written statement
shall include the location and telephone number of the respondent,
if known.
B.
A law enforcement officer who receives an emergency order of
protection, whether in writing, by telephone or by facsimile
transmission, from the court shall:
(1)
if necessary, pursuant to the judge's or judicial officer's
oral approval, write and sign the order on an approved form;
(2)
if possible, immediately serve a signed copy of the order
on the respondent and complete the appropriate affidavit of
service;
(3)
immediately provide the petitioner with a signed copy of the
order; and
(4)
provide the original order to the court by the close of business
on the next judicial day.
C.
The court may grant the following relief in an emergency order
for protection upon a probable cause finding that domestic abuse
has occurred:
(1)
enjoin the respondent from threatening to commit or committing
acts of domestic abuse against the petitioner or any designated
household members;
(2)
enjoin the respondent from any contact with the petitioner,
including harassing, telephoning, contacting or otherwise
communicating with the petitioner; and
(3)
grant temporary custody of any minor child in common with
the petitioner and the respondent to the petitioner, if necessary.
D.
A district judge shall be available as determined by each judicial
district to hear petitions for emergency orders of protection.
E.
An emergency order of protection expires seventy-two hours after
issuance or at the end of the next judicial day, whichever time
is latest. The expiration date shall be clearly stated on the
emergency order of protection.
F.
A person may appeal the issuance of an emergency order of protection
to the court that issued the order. An appeal may be heard as
soon as the judicial day following the issuance of the order.
G.
Upon a proper petition, a district court may issue a temporary
order of protection that is based upon the same incident of
domestic abuse that was alleged in an emergency order of protection.
H.
Emergency orders of protection are enforceable in the same manner
as other orders of protection that are issued pursuant to the
provisions of the Family Violence Protection Act [this article].
History: Laws 1999, ch. 142, § 2.
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40-13-4.
Temporary order of protection; hearing.
Upon the filing of a petition for order of protection, the court
shall:
A.
immediately grant an ex parte temporary order of protection
without bond, if there is probable cause from the specific facts
shown by the affidavit or by the petition to give the judge
reason to believe that an act of domestic abuse has occurred;
B.
cause the temporary order of protection together with notice
of hearing to be served immediately on the alleged perpetrator
of the domestic abuse; and
C.
within ten days after the granting of the temporary order of
protection, hold a hearing on the question of continuing the
order; or
D.
if an ex parte order is not granted, serve notice to appear
upon the parties and hold a hearing on the petition for order
of protection within seventy-two hours after the filing of the
petition; provided if notice of hearing cannot be served within
seventy-two hours, the temporary order of protection shall be
automatically extended for ten days.
History: Laws 1987, ch. 286, § 4.
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40-13-5.
Order of protection; contents; remedies; title to property not
affected.
A. Upon finding that domestic abuse has occurred, the court
shall enter an order of protection ordering the respondent to
refrain from abusing the petitioner or any other household member.
The court shall specifically describe the acts the court has
ordered the respondent 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
petitioner during the period the order of protection is effective
or order the respondent to provide temporary suitable alternative
housing for petitioner and any children to whom the respondent
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 petitioner on a basis that gives primary consideration
to the safety of the victim and the children;
(3)
order that the respondent shall not initiate contact with
the petitioner;
(4)
restrain the parties from transferring, concealing, encumbering
or otherwise disposing ofpetitioner'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 party restrained in court; and
(5)
order other injunctive relief as the court deems necessary
for the protection of the petitioner, including orders to
law enforcement agencies as provided by this section.
B.
The order 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 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.
No order issued under the Family Violence Protection Act [this
article] shall affect title to anyproperty or allow the petitioner
to transfer, conceal, encumber or otherwise dispose of respondent's
property or the joint property of the parties.
E.
Either party may request a review hearing to amend the order.
An order of protection involving child custody or support may
be modified without proof of a substantial or material change
of circumstances.
History: Laws 1987, ch. 286, § 5; 1993, ch. 109, §
3.
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40-13-6.
Service of order; duration; penalty; remedies not exclusive.
A. An order of protection granted under the Family Violence
Protection Act [this article] shall be filed with the clerk
of the court and a copy shall be sent by the clerk to the local
law enforcement agency. The order shall be personally served
upon the respondent, unless he or his attorney was present at
the time the order was issued. The order shall be filed and
served without cost to the petitioner.
B.
An order of protection granted by the court involving custody
or support shall be effective for a fixed period of time not
to exceed six months. The order may be extended for good cause
upon motion of the petitioner for an additional period of time
not to exceed six months. Injunctive orders shall continue until
modified or rescinded upon motion by either party or until the
court approves a subsequent consent agreement entered into by
the petitioner and the respondent.
C.
A peace officer shall arrest without a warrant and take into
custody a person whom the peace officer has probable cause to
believe has violated an order pursuant to this section.
D.
State courts shall give full faith and credit to tribal court
orders of protection and orders of protection issued by courts
of other states. A protection order issued by a State or tribal
court against one who has petitioned, filed a complaint, or
otherwise filed a written pleading for protection against abuse
by a spouse or intimate partner is not entitled to full faith
and credit if:
(1)
no cross or counter petition, complaint, or other written
pleading was filed seeking such a protection order; or
(2)
a cross or counter petition has been filed and the court did
not make specific findings that each party was entitled to
such an order.
E.
A person convicted of violating an order of protection granted
by a court under the Family Violence Protection Act is guilty
of a misdemeanor and shall be sentenced in accordance with Section
31-19-1 NMSA 1978. Upon a second or subsequent conviction, an
offender shall be sentenced to a jail term of not less than
seventy-two consecutive hours that shall not be suspended, deferred
or taken under advisement.
F.
In addition to any other punishment provided in the Family Violence
Protection Act, the court shall order a person convicted to
make full restitution to the party injured by the violation
of an order of protection and order the person convicted to
participate in and complete a program of professional counseling,
at his own expense, if possible.
G.
In addition to charging the person with violating an order of
protection, a peace officer shall file all other possible criminal
charges arising from an incident of domestic abuse when probable
cause exists.
H.
The remedies provided in the Family Violence Protection Act
are in addition to any other civil or criminal remedy available
to the petitioner.
History: Laws 1987, ch. 286, § 6; 1993, ch. 109, §
4; 1995, ch. 176, § 3; 1997, ch. 59, § 1; 1999, ch.
48, § 1.
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40-13-7.
Law enforcement officers; emergency assistance; limited liability;
providing notification to victims when an abusing household
member is released from detention; statement in judgment and
sentence document.
A. A person who allegedly has been a victim of domestic abuse
may request the assistance of a local law enforcement agency.
B.
A local law enforcement officer responding to the request for
assistance shall be required to take whatever steps are reasonably
necessary to protect the victim from further domestic abuse,
including:
(1)
advising the victim of the remedies available under the Family
Violence Protection Act [this article], the right to file
a written statement or request for an arrest warrant and the
availability of domestic violence shelters, medical care,
counseling and other services;
(2)
upon the request of the petitioner, providing or arranging
for transportation of the victim to a medical facility or
place of shelter;
(3)
upon the request of the petitioner, accompanying the victim
to the victim's residence to remove the victim's clothing
and personal effects required for immediate needs and the
clothing and personal effects of any children then in the
care of the victim;
(4)
upon the request of the petitioner, assist in placing the
petitioner in possession of the dwelling or premises or otherwise
assist in execution or service of the order of protection;
(5)
arresting the abusing household member when appropriate and
including a written statement in the attendant police report
to indicate that the arrest of the abusing household member
was, in whole or in part, premised upon probable cause to
believe that the abusing household member committed domestic
abuse against the victim; and
(6)
advising the victim when appropriate of the procedure for
initiating proceedings under the Family Violence Protection
Act or criminal proceedings and of the importance of preserving
evidence.
C.
The jail or detention center shall make a reasonable attempt
to notify the arresting law enforcement agency or officer when
the abusing household member is released from custody. The arresting
law enforcement agency shall make a reasonable attempt to notify
the victim that the abusing household member is released from
custody.
D.
Any law enforcement officer responding to the request for assistance
under the Family Violence Protection Act is immune from civil
liability to the extent allowed by law. Any jail, detention
center or law enforcement agency that makes a reasonable attempt
to provide notification that an abusing household member is
released from custody is immune from civil liability to the
extent allowed by law.
E.
A statement shall be included in a judgment and sentence document
to indicate when a conviction results from the commission of
domestic abuse.
History: Laws 1987, ch. 286, § 7; 1995, ch. 54, §
1.
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40-13-8.
Domestic violence pilot program created; purpose; domestic violence
commissioner; duties.
A. The "domestic violence pilot program" is established in the
eleventh judicial district. The domestic violence pilot program
shall be implemented in the Gallup office, division two of the
eleventh judicial district, for the purpose of assisting the
district judge in that office with the administration of domestic
violence cases.
B.
A "domestic violence commissioner" shall administer the domestic
violence pilot program. The commissioner shall:
(1)
be a lawyer licensed to practice law in New Mexico; and
(2)
have at least five years of experience in the practice of
law.
C.
The domestic violence commissioner shall perform tasks pursuant
to the provisions of the Family Violence Protection Act [this
article], including:
(1)
review petitions for indigency;
(2)
interview petitioners;
(3)
determine if petitioners' requests for temporary restraining
orders should be granted;
(4)
conduct hearings on the merits of petitions; and
(5)
prepare recommendations to the district court regarding disposition
of requests for orders of protection.
History: Laws 1992, ch. 107, § 1. (back to top) |
