Albuquerque Divorce Lawyer Blog

On April 26, 2012 the U.S. Senate voted 68-31 to reauthorize the Violence Against Women Act (VAWA) for an additional 5 years, despite efforts by opponents to pass a more narrow version of the Act. The Senate version contains more funding for education and other services, as well as recognizes the special needs of Native Americans, immigrants, and the Lesbian Gay Bisexual and Transgendered (LGBT) community.

VAWA was first signed into law in 1994 and has been reauthorized twice before; in 2000 and again in 2005. In what women's advocates call a landmark piece of legislation, VAWA is aimed at improving the response of the community, police, and justice system to several forms of violence against women including domestic violence/domestic abuse rape, dating violence, and stalking.

VAWA created the Department of Justice's Office on Violence Against Women and provides federal funding for investigation and prosecution of violent crimes against women. It also imposes mandatory and automatic restitution on defendants who are convicted of violence against women. Additionally, VAWA provides a civil remedy when a district attorney does not prosecute a crime of violence against a woman,

The latest version of VAWA contains a number of provisions that have met staunch opposition. These provisions expand protection to Native American women, immigrants, and members of the LGBT community. For example, a new provision in VAWA gives tribal courts jurisdiction over non-Indian domestic violence defendants if the alleged crime occurred on reservation land. This provision is especially significant in states like New Mexico with a high Native American population. According to a report by the U.S. Department of Justice, American Indians and Crime, violent crime against Native American women occurs at a rate 3 ½ times greater than the national average. Opponents of the VAWA provision argue that in many cases, prosecuting non-Indians in tribal courts would deny defendants due process and would therefore be unconstitutional.

Another point of contention is a provision that would increase the number of temporary U.S. visas for illegal immigrants who are victims of domestic violence. The new provision would expand the number of temporary visas available by allowing the unused visas from previous years to be added to the annual 10,000 U visas currently available to victims of domestic violence, rape, and sex trafficking. Opponents of the new provision argue that this would effectively grant a form of amnesty to illegal immigrants. Proponents argue that the visas are indispensable in helping victims whose abusers may be using the threat of deportation to control and exploit them.

Further, a provision that would expand VAWA's protection to gay, transgender, and bisexual victims of domestic violence has met with stiff opposition. Although VAWA currently prohibits discrimination on any basis, including sexual orientation, many proponents of the new provision want to make it clear that members of the LBGT community are covered under VAWA.

Other less controversial new provisions will keep federal funding at the current level but allocate more funds toward domestic violence education on college campuses. The Senate bill also lengthens the time that a victim can stay in temporary housing and improves the legal protection available to victims of stalking. The Senate bill also reserves 20% of funds for forensic response and police training.

Whether or not the new version of VAWA is enacted, the recent debate highlights the serious issues facing women in the United States and what the law can do to address them. In the meantime, there is help available for victims of domestic violence.

The ending of relationships, whether through divorce or other means of separation should present an opportunity to move on for both the couples and the children involved; however, when domestic violence is present in these relationships, moving on may not be the goal of the abuser.

For those that perpetrate domestic violence, control is often the main goal of their behavior, according to the National Coalition against Domestic Violence. When divorce or separation proceedings begin, an abuser may attempt to maintain control by manipulating the process.

Manipulation can come in the form of improperly painting a portrait of the victim as unstable and less competent as a parent. Because of the abuse suffered, the victim may be less able to overcome these allegations, whether through an inability to speak up due to fear or because of some mental impairment suffered through trauma.

The law and the courts of New Mexico seek by mandate to achieve the best interests of the child. Unfortunately, on occasion, New Mexico's "best interest of the child" standard used in child custody issues may actually help an abusive parent exert control over another parent.

This standard implies that it is "best" that the child to be raised by both parents, unless there is evidence that such a relationship would be detrimental to the child. Because of the often secretive nature of domestic violence, this evidence may not be easily obtained. Even the child involved may not fully observe or understand the relational dynamics between their parents, thus, they may not be able to alert authorities to the dangers facing the victim parent.

If an abusive parent can successfully convince the court that the child belongs with them, the victim parent loses control, while the abuser gains more control. The abuser now has the legal right to continue controlling the other parent through visitation schedules, monetary support and even decisions regarding the actual care of the child. More alarmingly, the victim parent may be subject to further violence because of the continued contact.

Domestic violence matters should be openly discussed with an attorney, once the decision to separate has been made. An experienced divorce attorney can become the voice of the victim throughout the court proceedings and may eliminate the potential for an abuser to continue their reign of control.

Collins & Collins, P.C.
Albuquerque Attorneys

Child custody and time-sharing disputes can be extremely contentious. One common flashpoint is the child custody exchange. There are a number of common sense things the parents can do to avoid escalating conflict that often builds over time with custody exchanges. There are also a number of things that parents should not do during the exchange. Here are the top ten that we came up with:

1. Do NOT arrive late to pick up your children. This may seem obvious, but what can seem like a few harmless minutes to one parent can really upset the other parent and, in turn, the children. Always leave extra time to ensure that you will get to the pick location on time.

2. Do NOT make last minute changes. This goes along with being on-time and shows a general respect for the other parent and allows everyone to know what to expect. While it may seem like a simple change to have the other parent meet you at the store, rather than their house as regularly scheduled, such a change may really disrupt the other parent's plans, which in turn causes the children stress.

3. Do NOT discuss other issues at exchanges. Exchanging your children can be a difficult, tension filled process for both parents and children. Do not add to that tension by bringing up other issues like child support or a request to change timesharing at the exchange, save those discussions for a telephone call or e-mail exchange with the other parent.

4. Do NOT arrive unprepared. Bring children to an exchange with all the items they will need for their time with the other parent, this includes homework, sports equipment, clothes etc. This preparation helps limit stress on children because they have what they need and limits hysterical phone calls between parents looking for a soccer uniform twenty minutes before the game is scheduled to start.

5. Do NOT bring dates or random people to exchanges. As noted above, exchanges can be really stressful for parents and children alike, especially after a recent divorce or separation. Bringing a date may upset the other parent unnecessarily and bringing any other person may distract you from focusing on your children who need your full attention.

6. Do NOT go alone where domestic violence is an issue. (the exception to Number 5). If you and your ex have a history of domestic violence or accusations of domestic violence, it may be a good idea to bring a third party with you to exchanges to act as witness, which often helps everyone behave. Think carefully about the person you bring; it needs to be someone your children are comfortable with and who will not upset your ex. And remember, this person's job is just to observe not to create or participate in drama between parents.

7. Do NOT discuss adult issues with the children. When your son or daughter gets in the car at an exchange without a coat in the middle of winter, this may upset you. However, do not use that time to make comments about your ex (i.e. "I guess your father is too busy to bring your coat" or "Doesn't your mother know how to dress you properly?") to your children. Such concerns need to be addressed between parents outside the earshot of children. Involving children in adult issues makes them feel torn between parents and, in the long run, can cause severe emotional harm.

8. Do NOT make your children the intermediary. Parents get separated for a reason and they often want as little to do with each as possible, which is why it can be tempting to have your children give the other parent messages for you. Never do this. A child's job is to be a child, not to run interference between feuding parents. Not only is such message sending stressful for the children, it is a really ineffective way to communicate information and will often lead to misunderstandings that cause bigger problems.

9. Do NOT be stubborn. While both parents' time with their children is important and it is essential that each parent respect that, life still happens. Be flexible about rescheduling visits to accommodate family vacations and work conflicts with the other parent. Or if exchange times need to be rearranged to accommodate your children's music lessons, work with the other parent.

10. Do NOT bring law enforcement to exchanges. It is not the job of the police or sheriff's department to enforce family law orders. Aside from escalating conflict between parents, the presence of law enforcement can really upset children who often associate law enforcement with someone being in trouble or some sort of emergency. Surrounding exchanges with such negative connotations can cause children a lot of anxiety and even fear about exchanges.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Family Violence Protection Act ("the Act") creates a specific cause of action that allows a victim of domestic abuse to obtain a civil restraining order against the household member who committed the abuse. This type of restraining order is called an order of protection and will prevent the restrained party from any contact with the victim. Any person accused of domestic violence has a right to a hearing before a long-term order of protection is entered against them. The Act provides that those hearings may be conducted by a domestic violence special commissioner.

The special commissioner is not a judge, although they must be an attorney licensed to practice law in New Mexico and be knowledgeable in the areas of domestic relations and domestic violence. The special commissioner also has the authority to review initial petitions for orders of protection, issue temporary orders and enforce or modify orders of protection. However, all decisions by the special commissioner must be approved by a district court judge. Essentially, the special commissioner recommends a certain action (in the case the entry of an order of protection) and then the district court judge decides whether or not to accept that recommendation and issue the order. As a practical matter, most recommendations by the special commissioner are initially approved and entered by the reviewing district court judge.

Even though a special commissioner's initial recommendations will almost always be entered, the restrained party still has the opportunity to object to the special commissioner's findings and have those objections heard by the district court judge. Generally those objections must be filed with the district court within ten (10) days of the entry of the order of protection, or other related order, and they must be submitted in writing. Further, when submitting objections, it is also important to remember that the district court judge is only reviewing the special commissioner's recommendations and will only reverse or modify the resulting order if they determine that the recommendations were: arbitrary and capricious or an abuse of discretion; not supported by substantial evidence in the record; or, otherwise not in accordance with the law. This legal standard can be hard to overcome, which means that objections clearly explain to the district court why the entry of the order of protection is improper. It is not enough for an objecting party to tell the court that he or she disagrees with the entry of the order of protection; they must provide a legal basis for the objection.

Given that the district court judge is only reviewing the special commissioner's recommendations, it is essential that a party facing an order of protection take the initial hearing with the special commissioner seriously and present as much evidence as possible refuting the charges. By the same token, a party seeking to have an order of protection should be ready to present evidence supporting their case and explaining why they need protection. Parties should not disregard the importance of the initial hearing by relying on their ability to object later. And, given the very serious consequences of the finding of domestic violence that underlies an order of protection, both parties should seriously consider having legal counsel represent them before the special commissioner as well as to file any required objections.

Collins & Collins, P.C.
Albuquerque Attorneys

Many divorces have some level of conflict. Many others go smoothly with minimal emotional and financial damage to parties and the children. Then there are the high conflict divorces. These are generally devastating both emotionally and financially to the parties. They are rarely necessary and should be avoided if at all possible.

There are numerous behaviors that can send a divorce toward high levels of conflict and consequent high attorney fees and costs. The following list is not exhaustive but reflects the most common indicators and behaviors of high conflict divorce. To send a divorce spiraling into conflict, one or both parties:

1. Can begin the divorce process by avoiding service of process.
2. Can refuse to answer, forcing a motion and hearing on default.
3. Can fight the interim division of income and expense.
4. Can refuse to provide discovery or make illegal, nonstandard or overly burdensome discovery requests.
5. Can file groundless motions.
6. Can refuse to cooperate and compromise on the division of property and debt.
7. Can refuse to mediate in good faith once the case is sent to settlement facilitation by the court, as every case is.
8. Can force a trial even though the outcome will be harmful to both parties.
9. Can fight over the smallest and most trivial items as a way of settling emotional scores.
10. Finally, after all that, can refuse to abide by the Marital Settlement Agreement (MSA) or court judgment by; Refusing to cooperate in preparation of QDRO's. Refusing to cooperate in transfer of assets. Refusing to sell the home as ordered. Refusing to refinance the home or other debt as ordered. Refusing to provide title documents as ordered and required by law to transfer property. Refusing to pay debt as allocated. Or finally, coming up with new and creative ways to avoid obligations under the MSA or court judgment.

Now for the bad news. Any one of these can add enormous costs to the parties in terms of attorney fees. Each one could require a hearing which can add significantly to the costs of the divorce due to preparation time, travel time to court, waiting for the hearing to begin, drafting the order after the hearing and of course, returning to the judge for rulings on the content of the order because one of the attorneys or parties does not agree with the order as written, does not agree that the order as written reflects the court's ruling or just plain wants to be difficult. In short, any one of these issues can add hours upon hours of attorney time with corresponding attorney fees.

Now for the really bad news. I did not mention domestic violence, child custody, or child support. These issues can each increase the costs of a divorce or family law matter exponentially. They each are deserving of a discussion of their own.

In short, the costs of a divorce are dictated by the amount of attorney time expended. The amount of attorney time is dictated by the behavior of the parties. Either or both parties can drive up the costs of a divorce. Attorneys have limited control over the variables that will drive up attorney time. The best a lawyer can do is to try to work efficiently while advising the client of the risks of rising costs associated with certain behavior. Unfortunately, even the most efficient attorneys cannot control the other side. Only the other attorney can control that side of the equation and that is entirely different topic for discussion.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico statute governing the dissolution of marriage (divorce) lists four reasons that can be given to the court as grounds for divorce: 1) incompatibility; 2) cruel and inhuman treatment; 3) adultery; and, 4) abandonment.

Practically speaking, the vast majority of divorces in New Mexico are granted on the basis of incompatibility, which is known as a "no-fault" divorce. The policy of no-fault divorce has been a part of New Mexico law for more than sixty years and is so strongly favored by the courts that the other three grounds are rarely used anymore.

Even if one of those grounds is used as a basis for a divorce petition, the court will often not investigate that claim. Instead the court will recognize that the parties are incompatible and move on to the parties' debts and assets and addressing issues of custody and support.

This means that parties to a divorce in New Mexico will generally not have to spend time (and the associated attorney's fees and costs) proving that the other party committed adultery, behaved cruelly or is otherwise a bad person because the courts will deem that information irrelevant.

Often the no-fault policy can be hard for parties to a divorce to accept. This is especially so in cases where there has been adultery or cruel treatment by a spouse during the marriage. There is no shortage of animosity associated with financial affairs as well. Far too often, parties go into the divorce with the intention and the need to prove the other party is at fault. Sometimes, they simply will not be content until they have shown the court that the other party is simply a bad person.

In fact, the spouse may be a bad person guilty of all kinds of bad and sometimes atrocious behavior. Unfortunately, this behavior is with rare exceptions irrelevant to the divorce and the division of property and debt. It may or may not be relevant to child custody and time-sharing. Even when it is not, there are many occasions when the battlefront is shifted to the children. Child custody and time-sharing disputes will often to the great detriment of the parties, and especially the children, serve purely to punish the other spouse for the misdeeds during the marriage.

Consulting with an experienced divorce attorney can help parties focus on the relevant facts and applicable law, so that they can get through the divorce process efficiently and get on with their lives. In the absence of domestic violence, domestic abuse, child abuse, or child neglect, battles for moral superiority have no place in a divorce action. No-fault divorce has grown over time with the knowledge that the fault based divorces were often devastating to the parties and the children. The courts of New Mexico have made clear that allegations of fault will no longer be entertained.

Collins & Collins, P.C.
Albuquerque Attorneys

It is the unfortunate truth that divorce and child custody disputes can often lead to charges of domestic violence by or against either party.

In New Mexico, a single incident of reported domestic violence can result in criminal domestic violence and/or a civil domestic abuse case, either of which have serious consequences for the accused abuser.

The criminal domestic violence case is usually the result of the typical domestic violence call to the police or 911. Whenever the police are called on a domestic violence incident, one of the parties will be arrested if both are still present. Criminal charges are then filed against the arrested party. If the alleged abuser has left the premises, criminal charges will be filed without an arrest.

No matter how the charges are filed, the Court will almost always issue a no contact order that prevents the accused abuser/defendant from any contact with the victim. Typically, the court will also order the defendant to stay away from the alleged victim's home which is often also the home of the defendant.

In addition to criminal charges, the New Mexico Family Violence Protection Act allows a victim of domestic violence to file a civil case against the accused abuser by filing what is called a petition for order of protection. Upon filing the petition, an immediate temporary order of protection will be issued. Like the no-contact order in the criminal proceeding, the order of protection prevents any contact between the alleged abuser and the alleged victim. This civil proceeding can run concurrently with a criminal case.

In case of criminal charges, the case can go on for months. A civil case proceeds much more quickly. A hearing is set within ten days of service of the temporary order of protection and notice of hearing. In other words, once the alleged abuser receives notice of the allegations, an evidentiary hearing will be held for the court to determine whether or not the alleged abuser is guilty of an act of domestic violence. If domestic violence is found, a 6 month order of protection will be issued. This order may be extended for good cause.

Either a criminal conviction for domestic violence or a finding of domestic violence in family court have very serious and negative consequences on things like future employment options, the ability to carry a firearm, immigration status and even the ability to rent an apartment.

Either a criminal proceeding or civil proceeding will have many of the same negative collateral consequences. The severity of these consequences is why it is so important that parties on either side of a domestic violence action speak to an attorney to understand their rights, responsibilities and the consequences of a finding of domestic violence. It is equally important in both a criminal and civil proceeding.

Collins & Collins, P.C.
Albuquerque Attorneys

One of the biggest sources of contention early on in a New Mexico divorce action is which party is going to leave the parties' marital home.

In New Mexico, a temporary domestic order is entered at the beginning of divorce which prevents either party from forcing the other to leave their shared residence. If both parties refuse to move out, then the court will have to enter an order determining who can stay and who must leave. This is not an easy issue in light of New Mexico's community property laws.

It may seem reasonable to just let the court decide who stays and who goes. In reality, it can take months, often many months, to get a hearing before the court on this issue. In the meantime, there are two people who are most likely not getting along very well attempting to live under the same roof.

While neither party may want to leave because they fear giving up a claim to the residence, the parties should also consider other damage that can occur when people who are arguing are forced to live together. This includes acts of domestic violence and sometimes false allegations of domestic violence.

Domestic violence can result in horrible physical and mental harm, and even in death. Domestic violence is a very serious problem and it is taken very seriously by law enforcement. In fact, law enforcement officers face some of their most serious officer safety issues in domestic violence situations. This accounts for the inevitable and sometimes seemingly illogical arrest of one of the parties on every domestic violence call.

A conviction for domestic violence or even an entry of an order of protection can result in permanent and irreparable damage to the alleged abuser. These include consequences for gun ownership or possession, employment, security clearance, property rental and immigration status among others.

These dour consequences result on a conviction or finding of guilt. Many times, it is the alleged victim's word against the alleged abuser. Is it really worth the risk in either case? The house is not worth a lifetime of disadvantage resulting from a finding of domestic violence.

Any sensible person faced with a choice of leaving the house, loss of pride, financial concerns or the like as opposed to a possible domestic violence situation should think seriously about moving on.

False allegations of domestic violence are hard to swallow for the alleged abuser. A true act of domestic violence is completely unacceptable and intolerable for the victim, law enforcement and the courts. Either way, living in a hostile home environment in the midst of divorce is truly flirting with disaster.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the Family Violence Protection Act allows a victim of domestic violence to file a petition for order of protection, asking the Court to enter an order of protection preventing the person committing the domestic violence (called the restrained party) from having any contact with the abused party (called the protected party). Orders of protection are a specific type of civil restraining order and they can have a variety of consequences for all of the parties involved.

The primary consequence of an order of protection is that the restrained party cannot go within 100 yards of the protected party's home or workplace and must stay 25 yards away from the protected party in public. An order of protection may also prevent or regulate contact between any children that the parties may have together. The order of protection also prevents telephone, which includes texting, and e-mail contact between the parties.

All of these requirements will be explained in the actual order of protection; however, an order of protection has other consequences that are not as clear. If the order of protection is issued after a hearing at which the judge or special commissioner makes a formal finding of domestic violence, then the order may have long-term consequences on the restrained party's future employment opportunities, firearm rights, and immigration rights. The immigration consequences are perhaps the most serious of the collateral consequences since a finding of domestic violence may result in removal or deportation of the immigrant offender. Because of these very serious consequences, the parties may also agree to a Stipulated Order of Protection that does not include a finding of domestic violence.

Both types of orders of protection are filed with the National Crime Information Center (NCIC) so that they can be easily enforced by police across jurisdictions. In the case of a stipulated order, the restrained party is still prevented from any and all contact with the protected party and cannot possess a firearm while the stipulated order is in place, but there is no formal finding of domestic violence that would have to be reported later when applying for jobs, a firearms license or immigration procedures.

Finally, a violation of an order of protection can also result in criminal and civil penalties, including fines, jail time or both. Thus, if you are a party to a petition of order of protection, it is important that you discuss your case with an to make sure that the appropriate type of order of protection is entered and to ensure that it is properly enforced.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In order to protect victims of domestic violence, the New Mexico legislature enacted the Family Violence Protection Act, which authorizes the courts to issue a type of civil restraining order called an Order of Protection. If an Order of Protection is entered, it prevents the person committing the domestic violence or abuse (called the Restrained Party) from having any contact with the victim of that abuse (called the Protected Party). A party that violates the provisions of an Order of Protection may face criminal and civil penalties. In some case, the Restrained Party may also be the victim of abuse by the alleged Protected Party.

The procedure under the Family Violence Protection Act requires that the a person be personally served with the Petition for Order of Protection before an Order of Protection may be entered against him or her. The alleged domestic violence offender must also be allowed to appear at a hearing to answer to the charges in the petition. If a Restrained Party believes that he or she is also a victim of abuse by the person filing the petition, then he or she may file a counter-petition informing the court of that abuse and asking that an Order of Protection be entered against the other party.

A counter-petition for an Order of Protection follows the same basic format as the petition and must be filed before the hearing on the original order of protection is held. If the court finds that both parties have committed domestic abuse against each other, it may enter what's called a Mutual Order of Protection, which means that both parties can face criminal and civil penalties for making contact with the other party. However, the court will not issue a Mutual Order of Protection if a counter-petition has not been filed. Thus, if a person is served with a petition for Order of Protection, it is important that they contact a New Mexico Divorce and Family Law Attorney immediately in order to ensure that they understand all of their legal rights, including the right to file a counter-petition.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Under New Mexico law, a victim of domestic abuse can file a petition for order of protection asking the civil court to issue a restraining order (called the Order of Protection from Domestic Abuse) preventing the restrained party from contact with the abused party. The order of protection is an important mechanism available to protect victims of abuse. Unfortunately, as pointed out in recent columns in the Albuquerque Journal, the order of protection is often misused.

For instance, as part of a divorce proceeding, one party will often file a petition for order of protection even though no domestic abuse has occurred. The filing party may do this to prevent the other party from seeing their children or to force the other party from the marital residence. Or the filing party may just file the petition to cause the other party trouble because they then have to hire an attorney and miss work to appear at the hearing on the order of protection. Worse yet, the tactic can be used to literally ruin the other party.

The improper use of the order of protection can cost parties more than just time and money. A temporary order of protection is entered as a result of most petitions and although the temporary order does not make a finding of domestic violence, it is still part of the public record and may hinder the restrained party's ability to find employment or pass a background check. A finding of domestic violence has consequences far beyond the order of protection itself.

This misuse of the legal system is not only hard on the parties involved, but it puts the hearing officers and judges that review petitions for order of protection in a very difficult position. If the hearing officer issues a petition against a party that has not really committed domestic violence, then the restrained party can suffer serious and unfair consequences. On the other hand, if the hearing officer does not issue an order of protection and there really is domestic violence, then the life of the abused party could be in danger.

Given the frequent abuse of domestic violence proceedings, it is very important that parties on both sides consult an attorney prior to filing or immediately after being served with an order of protection. An innocent party's failure to do so may result in the entry of a bogus order of protection. A dishonest person filing a domestic violence action for wrongful purposes if found out by the court, can be facing numerous penalties including loss of child custody and time-sharing and findings of contempt with fines and awards of attorney fees. It is very dangerous game and should be treated as such by all.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

What if a Petition for an Order of Protection from domestic violence is filed against you, but you are actually the victim, rather than the perpetrator of the abuse? In New Mexico, you are allowed to file a Counter-Petition for Order of Protection from Domestic Abuse in which you can respond to the allegations in the original Petition while also asking the Court to enter an Order of Protection against the other party. In Albuquerque, the Counter-Petition can be filed at the Domestic Violence Office on the Second Floor of the Second Judicial District Courthouse.

The Counter-Petition must include all of the elements required of the original Petition for Order of Protection Against Domestic Abuse including a clear, detailed statement of the nature of the abuse and when and how it occurred. Remember that the definition of domestic abuse under Family Violence Protection Act is very broad. It includes incidents against a household resulting in: actual, physical harm, severe emotional distress, a threat that causes you to fear bodily injury and a variety of other situations. Also, remember that the definition of Household Member is very broad and can include a spouse, former spouse, any other family member (including present or former-stepparents or in-laws) and any other person with whom you have had an ongoing, personal relationship.

There should not be any cost for filing the Counter-Petition and the local sheriff is required to serve the Counter-Petition for free. If you are served with a Petition for Order of Protection and believe that you have grounds for a Counter-Petition it is imperative that you act quickly because hearings on the Petitions are typically held within a few weeks, if not days, of the issuance of the Petition. You will need to have the other party personally served with the Counter-Petition prior to that hearing so that the hearing officer or judge evaluating your case can hear both petitions. It is best to consult an attorney in any domestic violence situation, but at the very least you should got the courthouse where the original petition was filed to get more information about filing a Counter-Petition.

www.CollinsAttorneys.com

The essential component of a Domestic Violence Order of Protection under the New Mexico Family Violence Protection Act is the issuance of a restraining order prohibiting the restrained party from having any contact with the protected party/alleged victim. However, when the restrained party and the protected party have children together the domestic violence hearing officer can also issue short-term decisions regarding child custody, timesharing and child support. In Albuquerque, Rio Rancho and Santa Fe, the hearing officer will often refer the parties to the court clinic or family court services in order to evaluate custody and advise the court as to what is in the best interest of the children involved in the domestic violence case. The result is often a temporary parenting plan, the duration of which will depend upon the future behavior of the parties.

Albuquerque, Rio Rancho and Santa Fe each have a variety of court clinic and/or family court services for addressing child custody and time-sharing issues. These offices are staffed by trained psychologists, therapists and social workers who are often called court clinicians. The purpose of a court clinician is to help the judges and hearing officers make custody determinations by conducting an investigation into a child's living situation. This investigation, often referred to as a child custody evaluation, includes interviews of the parents, the child (if the child is old enough) and others involved in the child's daily life such as grandparents, teachers, doctors, counselors and even coaches.

Sometimes a hearing officer will ask a court clinician to appear at a hearing on an Order of Protection on very short notice for an on-call child custody evaluation. This is typically the case in custody matters related to domestic violence actions. In these situations, the hearing officer will call a recess from the hearing in order to allow the on-call clinician to speak to all of the parties present and make a child custody and timesharing recommendation that is in the child's best interest. If the on-call clinician determines that more investigation needs to be done they may ask the hearing officer to order a priority consultation which a more thorough but expedited custody evaluation. However, the on-call clinician will make interim recommendations based upon preliminary findings that will stand pending the priority consultation

A priority consultation is a more in-depth evaluation by the court clinician and will usually be held sometime after the domestic violence hearing. It may include interviewing others in the child's life not present in court at the domestic violence hearing and reviewing any relevant documentation about the parents' or the child's mental health. If the court clinician feels like still more investigation is needed, there may be a request that the hearing officer or the judge order that the parties participate in an advisory consultation, which often requires all the parties involved to undergo psychological testing and may span a period months, often many months due to the heavy caseload in the court clinic.

At the end of an on-call, priority or advisory consultation, the court clinician will make recommendations to the hearing officer or judge as to what the parties' timesharing arrangement should be. Each party has ten (10) days to object to the recommendations issued by the court clinician. If no objections are filed within the 10 day time period, the recommendations are adopted as an order of the Court.

A hearing on an Order of Protection can have lasting effects on a restrained party's liberty and their right to see their children, which make is extremely important that you consult an attorney if a Petition for Order of Protection is filed against you. Every case is unique and requires individual analysis to protect both your interests and the interests of your children. No matter which side you are on, it is typically inadvisable to attend these hearings without a New Mexico divorce and family law attorney.

www.CollinsAttorneys.com

A domestic violence order of protection is a type of restraining order issued to protect victims of domestic violence under New Mexico's Family Violence Protection Act. Domestic violence cases in New Mexico are often filed in criminal court where the penal consequences can be severe. The Family Violence Protection Act provides another layer of protection for alleged victims of domestic violence in New Mew Mexico civil courts.

Though these cases are filed in civil court, a finding of domestic violence has very serious consequences. As such, it is imperative that anyone facing one of these proceedings consult with an attorney, and have one present at the hearing if at all possible.

After an alleged victim of domestic abuse (called the Protected Party) files a Petition for Order of Protection Against Domestic Abuse 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.

Though an Order of Protection is not a criminal action, a Restrained Party who violates the Order of Protection in any way can be charged with a crime. In addition, the Restrained Party can also be charged with contempt of court and jailed until a hearing is held. In serious domestic violence cases, the judge can hold the Restrained Party following the hearing under its contempt powers. 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. In Albuquerque, Santa Fe and Rio Rancho, these hearings are heard by Domestic Violence Hearing Officers. If the presiding official makes a finding that domestic abuse has occurred, the can issue an extended Order of Protection that extends for 6 months. The alleged victim may file a Motion to Extend Domestic Violenc Order of Protection in cases where there is an ongoing threat of domestic violence.

As stated, a finding of domestic violence can have serious long-term implications, including registration as domestic violence offender, prohibitions on gun ownership, deportation, bars to certain employment including any job requiring a firearm, and problems with security clearance which is often most serious of all in New Mexico. Further, the extended Order of Protection not only prevents the Restrained Party from contacting the Protected Party, but it can also include provisions regarding custody of children, distribution of property and can order the parties involved to attend counseling.

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 a finding of domestic violence while allowing the alleged victim all the protections of an Order of Protection. This will avoid the finding of domestic violence and most of the consequences outlined above. In most cases, this is not only best for the Restrained party but also for the alleged victim since a domestic violence finding will often result in the loss of employment and loss of support for the alleged victim and the children to the relationship.

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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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