Albuquerque Divorce Lawyer Blog

An order of protection is a type of restraining order issued to protect victims of domestic violence that is authorized by the Family Violence Protection Act. An Order of Protection basically prohibits contact between an alleged victim and the person the alleged abuser.

After an alleged victim of domestic violence (called the Protected Party) files a Petition alleging that another person (called the Restrained Party) has committed an act of domestic abuse, the court will issue a Temporary Order of Protection against the Restrained Party and order both parties to appear at a hearing.

The Temporary Order of Protection forbids the Restrained Party from any contact with the Protected Party until the hearing. This often means that a Restrained Party cannot return to their home and it also prohibits contact by telephone, e-mail and texting.

A Petition for Order of Protection is not a criminal action. However, a Restrained Party who violates the Order of Protection in any way is subject to immediate arrest. In addition, the person can be subject to both criminal charges and contempt of court . So if you are served with an Order of Protection, it is very important that you read the terms of the Order carefully and strictly obey them.

At the hearing, which should occur quickly after the filing of the Petition, the court will decide whether or not an act of domestic abuse has occurred. Depending on where you live, the hearing may be presided over by a judge, a hearing officer or a special commissioner. If the presiding official makes a finding that domestic abuse has occurred, the court will issue an extended Order of Protection for 6 months. The Order can be extended for up to a year for good cause with Motion to Extend the Order of Protection Against Domestic Violence.

A finding of domestic violence can have serious long-term implications, including prohibiting a Restrained Party from ever possessing a firearm. A finding of domestic violence can have serious immigration consequences resulting in the initiation of removal proceedings and eventual deportation of an offending immigrant. Finally, a finding of domestic violence will often bar certain types of employment and more often than not will have grave consequences for governmental security clearances.

The parties to a Petition for Order of Protection may want to consider agreeing to a Stipulated Order of Protection, which can allow them to avoid some of the consequences of a finding of domestic violence. After all, the consequences outlined above can be devastating to both the party found guilty of domestic violence as well as the alleged victim who is often left with no means of financial support for her and the children.

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After an alleged victim (the Protected Party) of domestic violence has filed a Petition for Order of Protection and the Temporary Order of Protection has been entered preventing the alleged abuser (the Restrained Party) from any contact with the alleged victim, the court holds hearing to determine whether or not the Petition provides enough information for the court make a formal finding that domestic abuse has occurred.

These petitions are often filed in the context of a divorce or custody battle. However, they can be filed by any "household member" as defined under the statute. The Family Violence Protection Act statute defines household member as follows:

"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."

A parent can also file a Petition in order to protect their minor child. The court must find that a preponderance of the evidence provided at the hearing shows that an act of domestic abuse has occurred.

According to the Family Violence Protection Act, the definition of domestic abuse is very broad, but it basically defined as an incident by a household member against another household member and includes things like actual physical harm, severe emotional distress or just making a threat that causes the Protected Party reasonably think that the Restrained Party might harm them.

A finding of domestic abused can have serious implications. The court records of these civil domestic violence Petitions are not accessible to the public in New Mexico, however, all Orders of Protection are reported to the database maintained by the National Crime Information Center (NCIC), which is accessible to all law enforcement agencies in the country. A finding of domestic violence results in registry in the database as a domestic violence offender.

Registry as a domestic violence offender has numerous severe consequences. The full faith and credit clause requires that every state recognize and enforce the Orders of Protection issued by another state. Many employers, especially for jobs that require any kind of security clearance, will request that a potential employee report whether or not any findings of domestic abuse or violence have ever been made against them. And, under the federal gun control regulation, a finding of domestic abuse will prevent a Restrained Party from ever owning or possessing a firearm. This includes firearms used in hunting. It also includes firearms used in the course of law enforcement and the military effectively barring domestic violence offenders from law enforcement and military service in the absence of waivers. Finally, a finding of domestic violence serious immigration consequences including immigration removal proceedings for deportation and exclusion of the domestic violence offender from the United States.

Due to the severe consequences of a fidnign of domestic violence and the rather liberal burdens and rules of evidence in domestic violence hearings, the parties to a Petition may want to enter into a Stipulated Order of Protection, in which the Restrained Party agrees to comply with an extended Order of Protection, but a full evidentiary hearing is not held and there is no finding of domestic abuse. Both the alleged victim and the alleged abuser benefit from this arrangement particularly in cases where there are support issues. After all, it does little good to have family's provider fired from his job or worse, deported from the United States.

A party facing the a Petition for Order of Protection from Domestic Violence should discuss the implications of a finding of domestic violence and a Stipulated Order of Protection with their attorney or the court itself at the prior to the beginning of the hearing.

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A Domestic Violence Order of Protection is a type of restraining order issued to protect victims of domestic violence and abuse, which is authorized by the Family Violence Protection Act. In New Mexico, including Albuquerque, Rio Rancho and Santa Fe, anyone can file a Petition for an Order of Protection at the Domestic Violence office on the second floor of the Second Judicial District Courthouse. It is not necessary to have an attorney to file a Domestic Violence Order of Protection.

By statute, the Court cannot charge the alleged victim (called the Protected Party) for filing the Petition and the sheriff's office cannot charge a fee for serving the alleged abuser (called the Restrained Party) with Petition and Temporary Order of Protection.

A Domestic Violence Order of Protection is separate from criminal domestic violence charges that are filed in metropolitan, magistrate or district court. In cases of criminal domestic violence actions, the police or district attorney's office will file domestic violence criminal charges based on an alleged incident of abuse in a criminal case. In a Petition for an Order of Protection from Domestic Violence is filed by the alleged or his/her attorney. ,

It is possible for criminal charges and an Order of Protection to arise from the same incident. These Petitions for Order of Protection Against Domestic Violence are often filed during a divorce proceeding or a custody dispute. Unfortunately, these petitions are often used as a weapon in a divorce or custody matter with no real basis for the petition. A party accused of an act of domestic abuse may file a response to the Petition or may also file a Counter-Petition against the party alleging the abuse.

The standard required to file a Petition is very low. Essentially, a Protected Party just has to swear to the court that they have been a victim of domestic abuse and describe the abuse in the Petition. Then the court will issue a Temporary Order of Protection, which means that the Restrained Party cannot have any contact with the Protected Party.
The Petition and Temporary Order must be personally served on the Restrained Party and the Order will set a hearing when the alleged abuser must appear before the court.

Many jurisdiction, including Albuquerque's Second Judicial District and Santa Fe's First Judicial District, have appointed designated domestic violence hearing officers or special commissioners to hold the hearings on Petitions for Orders of Protection. The hearing officer or special commissioner will hear all the evidence and issue all the findings at the hearing and then issue a report that the presiding district court judge will approve.

All testimony at these hearings is on the record and under oath. Either party may have an attorney, but unlike criminal proceedings, an attorney is not provided for you by the State. The Protected Party has the burden of showing the court by a preponderance of the evidence that an incident of domestic abuse has occurred. Preponderance of the evidence basically means that it is more likely than not that domestic abuse occurred. This is a fairly low burden unlike the burden in criminal cases. In addition, the rules of evidence and procedure can be a little lax in domestic violence hearings. It is therefore necessary to defend the actions pretty aggressively if the allegations are without merit.

Should the hearing officer find that domestic violence has occurred, an Order of Protection will be issued for a 6 month period. These Orders can be extended for an additional 6 months through the filing of a Motion to Extend Order of Protection upon a showing of good cause.

Either party may file objections to the Hearing Officer's findings and report within 10 days of the issuance of the report. The matter will then be reheard before a District Court Judge.

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