Domestic Violence Restraining Orders
When there is recent abusive behavior between a couple – whether physical violence or severe emotional or sexual abuse – you can obtain a restraining order against your spouse or partner under the Family Violence Protection Act. NMSA §40-13-1 et seq. It is not necessary to call the police to obtain a restraining order, but please call the police if you or your children are in immediate physical danger. For further information, see Detailed Answer below.
A domestic violence restraining order is done under civil law, as opposed to criminal law. Sometimes criminal charges are also filed against the abuser, usually called “battery against a household member”. That means there are two cases involving the same events, one in family court and one in criminal court.
“No Contact” Orders
If you have a past or pending divorce or custody case, it is possible to agree to limit contact between the parents without having to do it under a domestic violence restraining order.
For example, Bill and Joan are getting divorced. They get into an argument over dividing the furniture. Things escalate. Bill tries to carry out a TV and Joan blocks the front door. Bill pushes her aside going through the door opening and Joan hits her head on the door frame. Joan goes to the courthouse the next day and obtains a temporary domestic violence order of protection. Bills gets served with the papers at work.
Before the domestic violence hearing, the attorneys talk about the situation, Bill and Joan agree this was a one-time incident when both of them were very upset, and there’s no history of physical altercations. Everyone agrees it’s better for them not to live under the same roof and to limit contact between Bill and Joan, but the situation doesn’t rise to the level of a DV restraining order. Joan now agrees to dismiss the domestic violence case and the lawyers file a “no contact” in the divorce case that spells out when and how Bill and Joan communicate directly.
Note that the police do NOT enforce a “No Contact” order like they can with a DV restraining order. If someone violates the “No Contact” Order, the remedy is to file a motion and hold a hearing with the divorce judge to decide the penalty.
If you are considering obtaining a domestic violence restraining order or if you have been served with a Temporary Order of Protection and are trying to prepare yourself for court, below is a more detailed explanation of the Family Violence Protection Act and how it works.
What is “domestic abuse”?
Domestic abuse describes specific kinds of behavior by one household member against another household member that consists of or results in –
- Physical harm
- Severe emotional distress
- Sexual assault
- A threat causing imminent fear of physical harm
- Criminal trespass
- Criminal damage to property
- Repeatedly driving by a residence or work place (stalking)
- Harassment by telephone or other means
- Harm or threatened harm to children
As you can see, domestic violence or abuse is not limited to being physically hurt.
What is a “household member”?
You don’t have to live together to be a household member. The law defines “household member” as a –
- Spouse or former spouse
- Present or former step-parent
- Present or former in-law, grandparent, grandparent-in-law
- Child, step-child or grandchild
- Co-parent of a child
- Person with whom you have had a continuing personal relationship
- Any victim of stalking or sexual assault, regardless of family relationship
While this covers many different forms of relationships or familial connections, the following people do not meet the definition of household member –
- Your former or current spouse seeking a restraining order against your former or current girlfriend / boyfriend
- Siblings (brothers and sisters, step- or half-brothers and sisters)
- Aunts and uncles
- Nieces and nephews
- Sibling in-laws (current or past)
- Step-grandparents and step-grandchildren
- Any present or former in-law other than a parent-in-law or current grandparent-in-law
If your connection to the abuser falls outside the “household” member category, you would have to pursue a restraining order under the normal rules and laws for any civil restraining order, which is different than a DV Order under the Family Violence Protection Act.
Who can obtain a domestic violence (DV) restraining order?
A person who has been abused can ask for a DV restraining order against a current or former other household member (see above for who qualifies as a household member). It’s not a free-for-all where anyone can get a DV Order against anyone else. The incident of abuse needs to occur recently, usually within 30 days of filing the petition, because you are asking the judge to grant emergency relief. If you and your husband got into a physical fight six months or two years ago, you will probably not get a restraining order now because the emergency has passed.
Where do I get a DV order?
You go to the state District Court in the county where you live to process the application for a DV Restraining Order. There is no fee to file a domestic violence case (unlike filing a divorce or paternity case).
What protection does a DV Order provide?
After reviewing your application for a restraining order, the Court will either grant a Temporary Order of Protection or deny the application or set a hearing to determine if a temporary order should be issued. If the court believes the facts as stated in your application show one or more acts constitute “domestic abuse” by a household member, then the court will issue a Temporary Order of Protection requiring the other side to stay away from you and not contact you. Temporary Orders are only good for a short period of time, usually 10 days. In the Temporary Order of Protection, the court tells you and the other side the date, time and location of the hearing that will take place to decide whether the DV Order should be issued for a longer period of time.
A DV Order keeps the abuser away from you. He or she cannot come within a certain distance of you, your home, your school or your place of employment. He or she cannot communicate with you by telephone, text, email or mail, or try to get someone else to contact you on his / her behalf.
If there are children involved, the DV Order can set the terms of custody and visitation on a temporary basis, and set temporary child support. Usually the children will be exchanged in a neutral, public location – such as a police station – or at an agency that does supervised exchanges or supervised visits. If the children’s safety is a concern, the court may even order that the abuser’s visits with the children be supervised.
A DV Order can address how bills get paid on a temporary basis, and who gets certain property, such as cars.
A DV Order is not a replacement for a divorce or paternity case. Basically, a DV restraining order tries to keep the abuser away from the victim, and put temporary arrangements in place about the children and finances. Sometimes the judge just puts in the provisions about staying away and refers the family back to the divorce or paternity case judge to deal with custody, visitation, child support and other monetary or property issues.
What happens if he / she violates the DV restraining order?
Call the police immediately. If the restrained person is still there, the police may arrest him or her. If the restrained person has left, still call the police to make an incident report. Tell your attorney about the violation so your lawyer can file a motion to alert the judge of the violation. The judge can impose penalties, including jail time, depending on the seriousness of the violation.
What if I didn’t do the things my spouse / partner says I did?
If you have been served with a domestic violence restraining order, do NOT call your alleged abuser and ask her / him what’s going on? That call or text is a violation of the Temporary Order of Protection for which you could be arrested.
First and foremost, go to the hearing at the date and time in the Temporary Order of Protection and Order to Appear. Failure to show up in Court pretty much guarantees the DV Order will be granted against you. If you absolutely cannot make the hearing at the scheduled time, file a Motion for Continuance and explain to the judge why you need a different date and time. The reason has to be serious and credible, i.e., you are in the hospital. If you are in jail and don’t bond out before the hearing, then the Court should issue a “Transport Order” bringing you from jail to the courtroom in time for the hearing.
Second, stay calm and focused at the hearing. You will have a chance to tell the judge your side of the story. If you have witnesses that support your side of the story, bring them to Court so they can testify.
Third, hire an attorney – or at least consult with one before the DV hearing. If the Court listens to both sides of the story and decides that you did commit one or more acts of domestic abuse, there are serious consequences in addition to having to stay away from the other side and having limited time with your children. A finding of domestic abuse means you go on a national registry of domestic violence abusers; you cannot have firearms or ammunition in your possession; you might lose your security clearance if you work for the government; and your credit rating may go down.