Domestic Abuse Laws
New Mexico
2001
Note: This page features auto-scrolling links by statute.
New Mexico
Statutes
Chapter 40. Domestic Affairs
Article 13. Family Violence Protection.
40-13-3. Petition for order of protection; contents; indigent petitioners; standard forms.
40-13-3.1. Costs of criminal processes associated with domestic abuse offenses.
40-13-5. Order of protection; contents; remedies; title to property not affected.
40-13-6. Service of order; duration; penalty; remedies not exclusive.
40-13-8.
Domestic violence pilot program created; purpose; domestic violence commissioner;
duties.
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.
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.
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.
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.
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.
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.
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 any
property 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.
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.
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.
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.