Domestic violence is often defined broadly to include “all acts of physical, sexual, emotional, psychological or economic violence” that may be committed by a family member or intimate partner.
A person can be charged with a variety of criminal charges resulting from domestic violence.
An order of protection, also known as a restraining order, can be filed by a victim of domestic violence, stalking or sexual assault (rape).
WHAT IS AN ORDER OF PROTECTION?
You may have heard someone say, “You should get a restraining order against that person”. In New Mexico, a “restraining order” against an intimate partner (dating partner, spouse or co-parent of a child) or some household members (see definitions below) is called an ORDER OF PROTECTION. An Order of Protection is a court order that prohibits a person from hurting, threatening or harassing another person.
WHERE CAN I GET AN ORDER OF PROTECTION?
An Order of Protection is issued by a District Court. You can find the location of all District Courts in New Mexico here: State Courts Map
HOW DO I GET AN ORDER OF PROTECTION?
1. Find the District Court in the county where:
the abuse occurred OR where you currently live.
2. You can file a Petition for Order of Protection from Domestic Abuse by:
► Filing the paperwork at the court on your own (without hiring an attorney).
► Hiring an attorney to help you file the paperwork for you.
► Locating a local domestic violence program or legal services program and for help in filing the paperwork.
WHERE CAN I FIND A PETITION TO FILE FOR AN ORDER OF PROTECTION?
You can find the Petition for Order of Protection from Domestic Abuse here.
You will need to print out the Petition for Order of Protection from Domestic Abuse, fill it out, and bring it in person to the District Court. The District Courts are unable to accept this form electronically or by fax. You will also need to print and fill out:
and bring it in person to the District Court.
HOW MUCH DOES IT COST TO FILE FOR AN ORDER OF PROTECTION?
Nothing. There is no cost or fees to file for an Order of Protection. The local sheriff’s office will also serve the other party for free. (NMSA 1978 Section 40-13-3.1)
IMPORTANT COURT INFORMATION
If you are planning on filing the Petition for Order of Protection from Domestic Abuse on your own, please look up the specific district court HERE to find:
- Hours of operation. Many courts are closed during the lunch hour, or stop taking paperwork before the court closes so it can be processed before 5 pm that day.
- Court address to make sure you go to the right court. Many towns have a district court, a magistrate court and a municipal court. Only the District Court has the Order of Protection forms available and is also the only court where you can file for an Order of Protection.
- Whether the court has a self-help center where court staff may be able to provide you with some basic information, such as the correct legal forms. Self-help center staff is not able to give you legal advice.
WHO IS THE PETITIONER AND WHO IS THE RESPONDENT?
The individual seeking protection is called a “Petitioner”. The abuser is called a “Respondent”. The Petitioner files a legal document, Petition for Order of Protection from Domestic Abuse, asking the court to restrain or prohibit the Respondent from certain types of behaviors.
IS THERE SOMEONE AT THE COURT TO HELP ME FILL OUT THE PAPERWORK?
No. Court staff cannot help you fill out any paperwork or give you any legal advice. If you have legal questions or need help filling out the Petition for Order of Protection from Domestic Abuse, you should contact a lawyer, local domestic violence program or legal services program for assistance.
WHO CAN I GET AN ORDER OF PROTECTION AGAINST?
In New Mexico, any person who has experienced domestic abuse by a household member may file for an Order of Protection. Any person who has been sexually assaulted or stalked by any other person, regardless of the relationship between the two people, can file for an Order of Protection.
WHO IS CONSIDERED A HOUSEHOLD MEMBER?
In New Mexico, the following types of relationships are considered “household members”:
▪ the other party is your spouse or former spouse;
▪ the other party is your parent, present or former stepparent or present or former parent-
▪ the other party is your grandparent or grandparent-in-law;
▪ the other party is your child, stepchild or grandchild ;
▪ you and the other party have a child together (regardless of whether you have been
married or have lived together at any time);
▪ you and the other party have dated or had an intimate relationship (continuing personal relationship);
▪ the other party has sexually assaulted you; or
▪ the other party has stalked you.
Parties in a same sex relationship are also considered “household members”.
You and the other party do not have to live together to be considered a household member.
Just because someone lives with you (like a roommate) does not mean they are “household member” under New Mexico law. Only individuals that have an intimate or close family relationship (see above) to each other are considered a “household member” in New Mexico.
EXAMPLES OF REALTIONSHIPS THAT DO NOT FIT THE LEGAL DEFINITION OF A HOUSEHOLD MEMBER:
relatives of your boyfriend/girlfriend
relatives of your child’s family, if you’ve never been married
other in-laws, such as brother-in-law or sister-in-law
VICTIMS OF RAPE AND STALKING
Any victim of sexual assault or stalking can file for an Order of Protection, regardless of the relationship with the other person. For example, if you know the person who sexually assaulted you or who is stalking you (neighbor, classmate, co-worker or friend) but you have never had anything more than a casual relationship, the law in New Mexico allows you to file for an Order of Protection against this person.
Stalking is a pattern of conduct that places an individual in reasonable fear of: death, bodily harm, sexual assault, confinement or restraint.
A “pattern of conduct” is two or more acts that happen on more than one occasion.
Stalking is more than someone following you, calling or texting you, annoying you, or bothering you. Stalking is two or more incidents, on at least two different dates, that made you afraid of being hurt, killed or held against your will.
WHAT IS DOMESTIC ABUSE?
Family Violence Protection Act
New Mexico defines domestic abuse as an incident by a household member against another household member consisting of or 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.
WHAT IS HARRASSMENT?
Harassment is knowingly pursuing a pattern of conduct that is intended to: annoy, seriously alarm, or terrorize another person and that serves no lawful purpose.
The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.
I’M AFRAID TO GIVE MY HOME ADDRESS. DO I HAVE TO INCLUDE IT IN THE COURT PAPERWORK?
No. If you feel that giving your home address will put you or anyone you live with in danger, you do not have to give your home address but you will need to fill out a request for the court to seal your address with Supreme Court Form 4-961B. Sealing your address on the court paperwork means your address will not be provided to anyone, except for the judge and court staff. You must give the court a valid mailing address so the court can send you any documents the respondent files in the case and notice of any upcoming court hearings.
HOW SOON CAN I GET AN ORDER OF PROTECTION?
In most cases the judge will review the Petition for Order of Protection from Domestic Abuse that you file on the same day that you are in court. It is extremely important that you included as much information as you can, so the judge can decided on the information alone whether or not to issue a Temporary Order of Protection. This process can take a few hours or may take all day, so be prepared to wait at the court to receive a decision.
WHAT INFORMATION DO I NEED TO FILE AN ORDER OF PROTECTION?
Before you go to the courthouse to file your petition for an Order of Protection, you will have to consider the following:
1. Who is the victim (petitioner)? You can file a petition for an Order of Protection for yourself. A parent or a legal guardian may also file on behalf of a minor child or an incompetent adult.
2. Other court cases involving you and the respondent. The court will want to know about any other court cases involving you and the respondent (current or previous). This includes divorce, separation, Order of Protection, child support, paternity, and abuse or neglect cases filed by you, the other party, or the state. Make sure to include all cases, even those filed in a court outside of New Mexico.
3. Why are you asking for an Order of Protection? Make a list of the domestic violence acts that the respondent committed, and/or the threats that the respondent made. You should state where (place) and when (date) each incident took place. You should include details on what happened, including injuries to yourself and damage to belongings. You should also explain why you are fearful of the respondent and why you need an Order of Protection.
4. Information about the respondent. The petition will ask for the respondent’s name, address, date of birth, phone number, work address, and work phone number. This information is necessary so the respondent can be personally served with the paperwork you filed and notice of the court date.
WHAT CAN I ASK FOR IN MY ORDER OF PROTECTION?
You can ask the judge to do many things to protect you and your children from the respondent. For example, a judge can order the respondent:
- Not to abuse you (physically, emotionally or financially)
- To stay away from your home, work, school, or child’s daycare
- To have “no contact” with you in person, by phone, by text messages, by letters or notes, by e-mail, through social media or through a third party
WHAT WILL HAPPEN TO MY CHILDREN IF I GET AN ORDER OF PROTECTION?
A judge may award temporary custody of children to you when you file for an Order of Protection if the judge believes the children are also in danger of being abused. You must ask the judge to award you temporary custody of the children and explain why you believe this is necessary.
Any custody order issued with an Order of Protection is only temporary and may last no longer than six (6) months. You must file a separate custody case in district court if you would like a long-term custody decision.
A judge may also order the respondent to pay temporary child support to you for a period of up to six (6) months. You must file a separate child support case for long-term child support. Please contact your local Child Support Enforcement Division (CSED), part of the Human Services Department, for assistance with establishing long-term child support. For more information on child support, click here.
The court may limit or deny the respondent visitation with his children. You must ask the judge to limit or deny visitation with his children and explain why you believe this is best for the children. In addition, you may be able to get the judge to order special rules for the visits between the respondent and the children.
A judge can order some things to make visitation safe for the children, such as:
- “Supervised visitation” means that the other parent can only see the child with someone else watching. Supervised visitation centers are places where specially trained staff who know about domestic violence watch over the visits between parent and child. You can ask the judge to order visitation to take place at a supervised visitation center, if this service is available in your community. For a map of the service providers in New Mexico, please click here. If supervised visitation is not available in your area, you can ask the judge to have your trusted friends or relatives supervise the visits. If you want someone to supervise the visits, be prepared to tell the judge who that person is and why he or she is a good person to supervise. Make sure the person is willing to supervise visits before you give his or her name to the judge.
- Limits on time: The judge may limit visitation to a few hours at a time, a few times week. A judge may also order that no overnight visits are allowed.
- Limits on place: The judge may order that the other parent visit with the child in a specific place, such as the home of another family member or in a public place. The judge may also order that the other parent can only visit with the child in the city/county where you reside.
- Other orders: The judge may order the other parent to do certain things, or not do certain things, before visiting with your child. Some things the judge can order are:
- The other parent must attend parenting classes;
- The other parent must attend a batterer’s intervention program;
- The other parent must submit to random drug and/or alcohol tests; and
- The other parent cannot have the child around a certain person.
If you want the judge to order any of these things, you will have to prove that they are needed. You will need to prove that it is harmful for the other parent to have parenting time or visits without the special rules being in place to keep your child safe. You will need to prove to the judge that your child gets scared or upset whenever he or she visits the other parent. It is useful to have professionals available to tell the judge what they have observed your child acting like after a visit with the other parent.
WHAT IF THE OTHER PARENT ABUSED ME BUT NOT OUR CHILD?
You may also need special rules in order to keep you safe while the court allows the other parent to visit with the child. For example, it may not be safe for you to see the other parent at all, even during an exchange of your children. You may need the judge to order rules to keep you safe, such as:
- Visits can only happen if a third person (a friend or relative) takes your child to and from visits with the other parent;
- Visits can only happen if you drop off and pick up your child at a friend or relative’s house, or at a supervised visitation center;
- Visits can only happen if you bring the child to the other parent in a public place; and
- Any other plan that will keep you safe.
WHAT IS A TEMPORARY ORDER OF PROTECTION?
A Temporary Order of Protection is issued by a District Court judge, without the need to hold a hearing, based solely on the information contained in the Petition for Order of Protection from Domestic Abuse that is filed by a petitioner. It is a temporary court order issued by a District Court judge that sets boundaries that the respondent must obey until a hearing is held at a later date.
HOW LONG DOES A TEMPORARY ORDER OF PROTECTION LAST?
The Temporary Order of Protection is valid until the court is able to set a hearing where both the petitioner and the respondent appear and testify. A hearing is usually set within ten (10) days of the Temporary Order of Protection being issued by the court.
The respondent must be personally served with a copy of the Petition for Order of Protection from Domestic Abuse and the Temporary Order of Protection. It is very important that you include a complete address for where the respondent lives and works so the respondent can be served with these legal papers. If the respondent is not personally served, the hearing will have to be re-set. You should not serve the other party with court paperwork. The sheriff’s office can serve the respondent (free of charge) or you can hire a process server on your own.
DO I HAVE TO APPEAR BEFORE A JUDGE FOR AN ORDER OF PROTECTION?
Yes. If you want an Order of Protection you must show up at the date and time the court has set to hear testimony and look at evidence that you have against the respondent. Please view the following video that explains what will happen at the Order of Protection hearing.
WHO CAN COME WITH ME TO THE ORDER OF PROTECTION HEARING?
You can bring witnesses to tell the judge about things they saw or heard the respondent do or say. You can have an advocate come with you and sit with you for moral support at the hearing. Other than you, only attorneys or witnesses can testify at the court hearing.
WHAT CAN I BRING TO THE ORDER OF PROTECTION HEARING?
You can bring:
- police reports;
- cell phones with text messages, voice mail messages, or photos; and
- any other evidence you have to prove the respondent did or said something to you that is domestic abuse.
Please do not bring any children with you to court. You should arrange for someone else to watch your children while you are in court. Judges usually do not allow children to testify against the other parent.
A judge may need to see your cell phone during the court hearing if your cell phone contains messages, texts or photos that prove the respondent did or said something to you. You should ask your local District Court if you need special permission to bring your cell phone to the court hearing since many courts do not allow you to bring cell phones into the court building. Make sure to plan ahead!
WHAT IS A RESTRAINING ORDER?
In New Mexico, a “restraining order” is different from an Order of Protection. A restraining order is a civil court order that instructs another person to leave you alone, directs them return something to you or refrains them from taking something from you. A civil restraining order is often issued against a neighbor, co-worker, friend, roommate or distant relative. It is also used in civil lawsuits (involving money claims).