2018 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 13 - Family Violence Protection
Section 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 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.
History: Laws 1987, ch. 286, § 5; 1993, ch. 109, § 3; 2001, ch. 15, § 1; 2008, ch. 40, § 7.
The 2008 amendment, effective July 1, 2008, changed "petitioner" to "protected party" and "respondent" to "restrained party" and added Subsections D and G.
The 2001 amendment, effective July 1, 2001, inserted Paragraphs A(5) and (6), which add provisions for financial remedies and counseling programs for victims of domestic abuse, and renumbered the remaining paragraph accordingly.
The 1993 amendment, effective June 18, 1993, in Subsection A, in the first sentence of the introductory paragraph, deleted "an act of" preceding "domestic abuse" and deleted "household member" following "respondent", substituted "the acts" for "in clear language understandable to the respondent the behavior" in the second sentence of the introductory paragraph, made a minor stylistic change in Paragraph (2), and inserted "require the parties" in Paragraph (4); added the second sentence in Subsection C; and added the second sentence in Subsection E.
Child custody. — As far as child custody matters are concerned, the Family Violence Protection Act is to be used only in emergency situations and as a temporary remedy that is limited in scope. Lucero v. Pino, 1997-NMCA-089, 124 N.M. 28, 946 P.2d 232, cert. denied, 123 N.M. 626, 944 P.2d 274.
Expiration of custody order. — Issue of whether an order transferring child custody under the Family Violence Protection Act should have been declared void under Rule 1-060B (4) NMRA was moot since the order had expired. Lucero v. Pino, 1997-NMCA-089, 124 N.M. 28, 946 P.2d 232, cert. denied, 123 N.M. 626, 944 P.2d 274.
Respondent's conduct constituted "severe emotional distress". — Where respondent appealed the district court's finding that respondent violated an order of protection that prohibited her from contacting petitioner and from committing further acts of abuse or threats of abuse against petitioner, evidence that respondent posted on the internet numerous photos of petitioner snorting prescription drugs, which were accompanied by statements claiming that petitioner was a "junkie", a "drug-addled imbecile" and a "drug-addicted hypocrite", and testimony from petitioner regarding the adverse effects, including nightmares and thoughts of suicide, that respondent's conduct had on petitioner's life, there was sufficient evidence to support a finding that respondent's online activity caused petitioner severe emotional distress. Best v. Marino, 2017-NMCA-073, cert. denied.
Order of protection did not violate respondent's due process rights. — Where respondent was found in criminal contempt for her violation of an order of protection, which expressly prohibited respondent from engaging in conduct that would cause petitioner to suffer severe emotional distress, and where respondent repeatedly posted on the internet photos of petitioner snorting prescription drugs, implying that petitioner had a substance abuse problem, accompanied by statements claiming that petitioner was a "junkie" a "drug-addled imbecile" and a "drug-addicted hypocrite", respondent's due process rights were not violated, because the order provided respondent with sufficient notice that her online activity would constitute a violation. Best v. Marino, 2017-NMCA-073, cert. denied.
Order of protection's restriction of respondent's ability to access the internet was unconstitutionally overbroad. — Where the district court issued an order of protection based on respondent's sustained pattern of stalking and harassment of petitioner, the court's restriction of respondent's ability to access the internet was a clear prior restraint on respondent's first amendment rights and was not the least restrictive means by which to address the harm in this case, and therefore the district court's restriction was unconstitutionally overbroad and violated respondent's first amendment rights. Best v. Marino, 2017-NMCA-073, cert. denied.
Double jeopardy. — Where provision in order prohibiting domestic violence (OPDV) prohibiting "battering in any manner" contained all elements of the statutorily defined offense of battery, a criminal prosecution for battery following a contempt proceeding for violating the OPDV violated defendant's right against double jeopardy. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, cert. denied, 127 N.M. 392, 981 P.2d 1210.
