The Family Violence Protection Act, Secs. 40-13-1 through 40-13-12, NMSA 1978, deals with situations involving Domestic Violence (also called “domestic abuse”).
“Abuse” means any incident by a “household member” (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 whom the Petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section), against another household member, 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 workplace, telephone harassment, stalking, harassment, or harm or threatened harm to children.
Any victim of domestic violence should come into the Domestic Violence Office. To help facilitate the Court’s ability to provide assistance, the individual should contact a law enforcement officer immediately following any act of abuse, and should bring copies of any report generated by the officer with them when they come into the office. The individual will need to bring proof of identification, and information on where the perpetrator can be found.
Once arriving at the Domestic Violence Division of the District Court, the individual will meet with the Domestic Violence Intake Staff, who will initially screen the individual, and is the first point of contact between law enforcement, victims, perpetrators, Judges, and other Court agencies, and can later be contacted regarding any questions about the language in the Order of Protection, as well as to file any applications to modify, extend, dismiss, or report a violation of the Order of Protection.
The individual filing the petition (know as the Petitioner) has their signature notarized, and the Petition is presented to the District Judge for consideration and will be provided with the forms needed to file a petition for an Order of Protection.
If the District Judge finds there is cause for the issuance of an ex parte Temporary Order of Protection, the Order will be filed, along with the Petition, and an Order to Appear, and delivered to the law enforcement officer for service on the perpetrator (known as the Respondent).
The ex parte Temporary Order of Protection is effective for 10 days from the date it is issued, (Weekends and holidays are not counted in the calculation of this 10 day period), and restrains the Respondent from committing specific acts of domestic violence, as well as providing other relief to the victim such as temporary custody of children, or exclusive use of his or her residence, as well as temporary child or spousal support.
The parties are ordered to appear before the Court, and the Court will have a hearing time. The District Judge may find that the Respondent should attend counseling for anger management, drug or alcohol abuse, and order any restitution seen fit.
Violations of an Order of Protection under the Family Violence Protection Act are serious. A law enforcement officer can arrest without a warrant, and take into custody, a person whom the law enforcement officer has probable cause to believer has violated an order. In addition to charging the person with violating the Order of Protection, the officer shall file all other possible criminal charges arising from the incident of domestic abuse.
A person convicted of violating an Order of Protection 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 72 consecutive hours that shall not be suspended, deferred, or taken under advisement.
The remedies provided in the Family Violence Protection Act are in addition to any other civil or criminal remedy available to the Petitioner.
