Albuquerque Divorce Lawyer Blog

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

One of the first issues to arise when a couple decides to get divorced is which spouse gets to stay in the community residence or marital home? Often, one spouse will hire an attorney very quickly after the spouses decide to get divorced. In some cases, the other spouse may not be aware that a divorce is in the works until they are served with the Petition for Dissolution of Marriage, which officially begins the divorce process. At some point in the divorce process, one spouse's attorney will often send a letter that demands that the other spouse immediately vacate the family home. However, such a demand is unenforceable.

The only way to force one spouse out of the home is to get an order from the court forcing them to vacate. Both spouses have an equal right to use of the home while the divorce is pending under the community property laws of New Mexico. A Motion must be filed asking the court for such an order to vacate, which is often filed along with a Motion for Interim Division of Income and Expenses. In accordance with the Community Property Laws of New Mexico, both spouses are equally entitled to use of all of community assets, including the marital home and the spouses' income. In turn, the spouses are also equally responsible for payment of the community debts. The purpose of the Interim Division of Income and Expense is to divide the spouses' income and allocate responsibility for payment of the spouses' expenses while the divorce action is pending.

Upon filing of a Motion, the Court may consider a number of factors in determining which spouse should remain in the home, including, among other things: the financial situation of the spouses; the ability of each spouse to afford a separate home; the presence of children in the home; and the existence of domestic violence. After weighing all of those factors, the Court may or may not order either spouse to vacate the marital home. If the Court declines to order one spouse to vacate, then the spouses must decide whether or not they will be able to tolerate living in close proximity during their divorce proceeding. If there is a high amount of conflict between the spouses, then it is wise for one spouse to vacate the home in order to avoid any possibility of an incident of domestic violence.

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