Two kinds of protection orders are available to citizens in New Mexico: Domestic Violence (DV) Orders of Protection and Restraining Orders. These are two very different orders heard in different courts. Both are meant to protect victims of abuse, harassment or violence.
You do not need a lawyer to apply for either of these protective orders. However, both types of applications lead to a hearing in front of a Judge or Hearing Officer. It is highly recommended that you engage an experienced attorney to represent you in the actual court hearing where your request will be either granted or denied. If you need either of these types of protection orders in Albuquerque, New Mexico, it’s important to have an experienced family law attorney at your side.
What is a DV Order of Protection?
Domestic Violence (DV) Orders of Protection are heard in Family Law Court by a Hearing Officer. This type of order can be sought only if the parties are “household members”. Examples include: spouses, former spouses, stepparents, in-laws, any other family member, boyfriend or girlfriend, or a person with whom the petitioner (person requesting the protection) has had a continuing relationship (dating or an intimate relationship). Cohabitation is not necessary for one of the parties to be considered a “household member” for the purposes of protection.
DV Orders of Protection usually forbid an individual from engaging in certain behaviors, such as contacting the other person via telephone or email or being within a certain physical proximity to that person. New Mexico courts grant DV Orders of Protection any time a Hearing Officer believes that there is a credible threat against you, the Petitioner. Typically, DV Orders of Protection are granted due to:
- Domestic violence
- Harm to minors, child abuse
- Stalking and harassment
- Physical or mental abuse
Family law attorney Dorene A. Kuffer possesses the expertise required for hearings involving DV Orders of Protection. Having a legal professional present your case to the Hearing Officer increases your chance that the necessary evidence will be presented. An experienced attorney knows the rules of procedure in the courtroom and can best present your case.
Getting a Domestic Violence Order of Protection Order
An individual must complete several steps for the court to grant this order. The petitioner should first file and submit a Temporary Order of Protection with the court. This petition should allege that a household member committed an act of domestic abuse against another member of the household resulting in:
- Harm (or threatened harm)
- Stalking, which includes repeatedly passing by a workplace or residence
- Criminal damage to property
- Criminal trespass
- A threat causing imminent fear of physical injury
- Bodily injury or assault
- Severe emotional distress
After the submission of the petition, the domestic violence commissioner evaluates it and determines if it shows at least one of the many acts of domestic abuse. The commissioner then sets a hearing date, which allows the respondent to fight the petition by arguing that the alleged act of domestic violence never happened. The burden of proof is with the petitioner, as he/she must demonstrate that the action had occurred.
If the court grants the order, it will prevent the respondent from committing acts of domestic violence. It also:
- Allows the police to arrest the abuser if he/she violates the order
- Requires the abusive party to avoid contacting the petitioner by telephone, in person, via email, telegram, letter, etc.
- Excludes the abuser from the petitioner’s daycare, school, work, or home
What Happens if a Person Violates an Order or Protection?
The first violation is punishable by up to 365 days of imprisonment. A second violation immediately requires the abusive party to serve 72 consecutive hours in jail. Abusers who continue to violate the order will face a third-degree felony charge, carrying a $5,000 fine and/or up to three years of incarceration.
What is a Restraining Order in Albuquerque, NM
Restraining Orders are similar to DV Orders of Protection in that, when granted, they prevent a person from contacting you. These requests however, are heard in front of a Judge in Civil Court not Family Law Court. In these cases, the Defendant (or person you want to be protected from) may or may not be a member of your household or family as defined by New Mexico Statute (or law). It is strongly advised that you seek legal advice and representation from an attorney in Albuquerque or Rio Rancho before attending the hearing that will be scheduled after you apply for this type of protection. Although you can represent yourself in front of the Judge (called Pro Se), a skilled attorney better understands the rules of the court and the law.
Why You Need a Restraining Order Enforcement Attorney
Restraining orders are of a serious and sensitive nature. It’s best to discuss your situation with an experienced attorney. The right lawyer can inform you of your right, as well as preserve and suggest any possible remedies you may have.
Contact our Family Law Attorney
Dorene Kuffer has over 30 years of courtroom experience working on all aspects of family and civil law, from investigations to domestic violence, divorce, custody, juvenile arrests and more. If you need help filing a restraining order in Albuquerque, New Mexico, contact our family law office to request a consultation with Dorene Kuffer.