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How do I Get a Domestic Violence Restraining Order in New Mexico?

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Recently updated on April 9th, 2024 at 12:47 am

Overview

A Domestic Violence Restraining Order (DVVRO) protects individuals who have experienced abuse or threats of abuse from a family or household member. It serves as a crucial tool in safeguarding victims of domestic violence and ensuring their safety and well-being.

To obtain a restraining order, the victim must file paperwork at their local courthouse, typically in the county where they reside. This paperwork usually includes a written statement explaining the need for protection and may require supporting evidence, such as photos of injuries, witness statements, or police reports documenting instances of abuse or threats.

Once granted by the court, a restraining order sets forth specific rules and restrictions aimed at keeping the victim safe from further harm. These rules commonly prohibit the abuser from contacting or harassing the victim, visiting their home, workplace, or children's schools, and may establish boundaries regarding communication and interaction.

Restraining orders typically have a specified duration, which can vary depending on the circumstances of the case and the discretion of the court. While some orders may be temporary, lasting for a few months, others may be granted for a longer period, such as one year. In cases where ongoing protection is necessary, victims have the option to seek renewal of the restraining order to maintain their safety.

Definition of Domestic Violence in New Mexico

This section (N.M.S.A. § 40-13-2(D)) defines domestic violence for the purposes of getting a protection order in New Mexico. Domestic abuse is defined as:

  • an incident of stalking or sexual assault whether committed by a household member or by anyone else; or
  • an incident committed by a household member  against another household member that involves:
    • physical harm;
    • severe emotional distress
    • a threat causing imminent fear of bodily injury by any household member;
    • criminal damage to property;
    • repeatedly driving by a residence or work place;
    • telephone harassment;
    • harassment;
    • strangulation;
    • suffocation; or
    • harm or threatened harm to children as set forth in this paragraph.1

Note: If someone uses force to defend him/herself (self-defense) or to defend another person, that is not considered domestic abuse.

N.M.S.A. § 40-13-2(D) “Domestic violence” is abuse perpetrated against any of the following persons:

  1. A spouse or former spouse.
  2. A cohabitant or former cohabitant.
  3. A person with whom the respondent is having or has had a dating or engagement relationship.
  4. A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent.
  5. A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
  6. Any other person related by consanguinity or affinity within the second degree.

Comparison with Criminal Case

If you're victims of domestic violence, then you can file the following legal cases:

  • Criminal Case: In a criminal case, the burden of proof is beyond a reasonable doubt, the highest burden of proof.
  • Domestic Violence Restraining Order: This is considered a family law case, and the victim has to give some evidence and generally the burden is low and the victim must establish “reasonable proof of a past act or acts of abuse”. For Domestic Violence Restraining Order, you just need evidence to support that abuse occurred which is defined as bodily injury or fear that you will get bodily injury.

The court considers accusations of abuse leniently, and favors on issuing orders as long as there is some evidence.

Does my situation qualify for a Domestic Violence Restraining Order (DVRO)?

Here's a summary of the different types of restraining orders.  There are a few different types of restraining orders and typically only one of them may apply to your situation. The first step is to see if any of the different types of restraining order applies to your situation or is remotely related as that might help you decide whether to apply .

The types are:

1. Domestic Violence Protection Orders (DVPO)

DVPOs are available to victims of domestic violence, including threats or violence by family or household members. (NMSA) § 40-13-1.

2. Stalking Protection Orders

Stalking Protection Orders are issued to victims of stalking or harassment. These orders provide protection against further contact or harassment by the perpetrator. NMSA § 30-3A-3.

3. Harassment Restraining Orders

Harassment Restraining Orders are available to victims of harassment, including threats or intimidation. They offer protection against further harassment or contact by the perpetrator. NMSA § 30-3A-3.

What if I am Under 18 years of Age?

Restraining orders can be requested by anyone 12 years or older, and without your parent's permission.  If you are under 18, then in some situations , a judge may ask you to have a trusted adult help you in your case after you have filed for the petition. such as a parent a counselor or a neighbor.

If you are under 18, you can go to your local court's Self-Help Center for help. For support and safety tips, you can chat at loveisrespect.org, text "LOVEIS" to 22522, or call 1-866-331-9474.

If you are 12 or older and someone has asked for a restraining order against you, you can go to court without a parent. In some situations, the judge may ask you to have a trusted adult help you in your case.

Situation Examples

Example 1: Sexual and verbal abusive husband

Sarah is married to John. John often says mean things to Sarah, making her feel small and worthless. Sometimes, when Sarah doesn't do what John wants, he gets angry and yells at her. One night, John forces Sarah to do something she doesn't want to do. She feels scared and helpless because she knows he won't listen to her. Sarah decides she needs help to stay safe from John's abuse.

Example 2:  Boyfriend blackmails and destroys property to control and induce fear

Today, Michael was armed with a pistol and seemed to be under the influence of an unidentified substance. He made threats to create false narratives with the aim of jeopardizing my 28-year accounting career, stating he would falsely accuse me of engaging in illegal financial activities. His menacing statement, "if you mess with me, I'll retaliate," was accompanied by destructive actions, such as damaging property in my home, including creating a hole in the wall. Michael's behavior becomes particularly alarming when he is under the influence of drugs.

Example 3: Ex-boyfriend stalks 

Lisa ended her relationship with her boyfriend, Mark, because she felt unsafe around him. However, Mark couldn't accept the breakup and began stalking her. He followed her everywhere she went, showing up unexpectedly at her workplace, her home, and even when she was out with friends. Mark constantly sent threatening messages and made harassing phone calls, leaving Lisa feeling terrified and constantly looking over her shoulder. She knew she needed help to stop Mark's stalking behavior before it escalated further.

Is a Restraining order helpful?

The purpose of a restraining order is to restrict the contact or proximity of one person (the respondent or alleged perpetrator) to another person (the petitioner or victim) in order to ensure the safety and well-being of the petitioner.

The specific terms of a restraining order can vary depending on the circumstances of the case e.g. if the people live together then it might require one party to vacate the place.

Typically, a restraining order may prohibit the respondent from

  1. Approaching or contacting the petitioner including via text or social media
  2. Staying away from the usual places petitioner is at such as home, work or school
  3. Prohibit stalking, or surveillance of any kind
  4. In situations where they lived together, provide custody or access to
    • Children
    • Pets
    • Important documents
    • Personal items such as clothes, medications, cell phones
    • Cars
  5. Extending the restraining to others living with the petitioner

Research findings on benefits of restraining orders

Here's the top three findings from a study on domestic violence and restraining orders from the University of New Hampshire

Reduce Violence

Civil protective orders (such as a DVRO) are effective in reducing partner violence for many women. For half the women in the sample, a protective order stopped the violence. For the other half, the orders significantly reduced violence and abuse.

Cost Effective

They are a relatively low-cost solution, particularly when compared with the social and personal costs of partner violence.

Urban Vs. Rural

The impact of civil protective orders on reducing violence and abuse did not differ for rural and urban women. In rural areas where resources and services for partner violence may be more limited, the restraining orders hold greater importance.

Process for getting a restraining order

Step 1: Gather Evidence

The first step is to gather the evidence to support your case. The fallowing are considered as evidence of domestic violence

Evidence Type 1: Pending Criminal Case

Judges are also more likely to issue an order if there is an ongoing criminal case, therefore it's important to call such cases out when seeking a temporary restraining order.

When a judge sees that there's a criminal case happening, they might think it means the police or the district attorney are pretty sure they can prove the crime happened.

Examples of evidence are:

Evidence Type 2: Photos of violence, injuries, damage

These are the most common types of evidence submitted. These can be photos of victim's injuries inflicted by the abuser. It is helpful to add photos next to the related incident description to help create a complete picture for the judge.

Evidence Type 3: Print outs of messages, emails or transcripts of voicemail

You can take screenshots of text messages and attach them. Similarly you can print emails and attach them as pictures or PDF files. While in most cases you cannot submit digital files such as

Evidence Type 4: 911 Calls

Rather than just saying you called 911 or any specific hotline, you can make your case stronger by listing the following items

  • The number dialed in case of the domestic hotline
  • The date and time (or approximate date and time) when the call was made
  • Who made the call
  • What was reported on the call
  • Any specific details of the person who answer the 911 call e.g. male/female voice

Evidence Type 5:  Medical Records

You can attach documentation of previous medical emergencies or injuries that resulted from the actions of the abuser. These could be hospital visit records, print outs from your hospital portal (E.g. mychart) showing details of your visit.

Evidence Type 6:  Police reports

You can attach a copy of the police reports filed against abuser for domestic violence.

Evidence Type 7:  Testimony

A testimony from a witness. The witness can be anyone such as a family member, neighbor a co-worker or a bystander. The testimony is just an essay written describing the incidents witnessed, with as many specifics as possible.

Step 2: Get a copy of court forms 

In order to apply for a civil restraining order, you need to fill and submit a specific set of official court forms. These have questions aimed at understanding your situation and the people involved.

The complete set of documents is at the New Mexico Courts website. While these forms are used in most courts, certain courts use modified versions of these forms, and its important to uses those versions.

Tip: You can check your local court's website to see the exact versions and set of court forms needed. You need to prepare these forms. Courts also offer a free self help center where you can take forms. Alternatively you can use a free website such as LegalAtoms to prepare the restraining orders paperwork online.

 

Nothing happens until you file the forms. So its a good idea to step through the forms even if you think you don't plan to file for a restraining order right now, to get

You can then file them online when you've thought through all aspects.  There are special protections for victims, and you're protected even if your immigration status is undocumented in United States.

 

Step 3: File the Court Forms 

Submit your case documents at the court such that the clerk reviews their corrects and accepts them is called filing.

Identify the court at your county

In New Mexico, if you need to apply for a Domestic Violence Restraining order (DVRO), you'll typically go to the New Mexico District Courts and Magistrate Courts in your county.

The New Mexico District Courts and Magistrate Courts where you can apply for Domestic Violence Restraining orders (DVRO) in some of the major counties in New Mexico:

  • Bernalillo County District Court (Albuquerque):

Address: Bernalillo County Metropolitan Court, 401 Lomas Blvd NW, Albuquerque, NM 87102

  • Santa Fe County District Court (Santa Fe):

Address: Santa Fe County Courthouse, 102 Grant Ave, Santa Fe, NM 87501

  • Doña Ana County Magistrate Court (Las Cruces):

Address: Doña Ana County Government Center, 845 N Motel Blvd, Las Cruces, NM 88007

  • San Juan County Magistrate Court (Farmington):

Address: San Juan County Courthouse, 103 S Oliver Dr, Aztec, NM 87410

  • Sandoval County District Court (Bernalillo):

Address: Sandoval County Courthouse, 1500 Idalia Rd NE, Bernalillo, NM 87004

Methods of Filing

Method # 1: In Person:

Your court location would accept the forms to be submitted in person at the court hours.

Tip: All courts have lunch hours when they are closed for an hour

When you submit your case documents at the court, typically you take 3 copies.

The clerks reviews it, and if everything is ok, they formally enter it into the court system and put a stamp near the top of the documents. That acceptance is called filing.

Method # 2:  Electronically via a portal

Some counties now have one or more online portals where you create an account for free, and then you can upload documents and hit submit. You will be required to pay around $5-$10 filing fees.

Method # 3:  Via another person 

Some counties accept filing via a friend or legal courier. These companies or individuals charge a flat or hourly fee and file the documents at the court.

Step 4: Get a Temporary Order 

Depending on the facts and evidence presented, a Judge can issue a restraining order with immediate effect until the hearing, called an Emergency Temporary Order.  In relatively less risky situations, a temporary order is issued in a few days.

If there are no grounds or if the application is incomplete or the jurisdiction is incorrect the application may be rejected.

The temporary order is only valid for about 3 weeks which is the amount of time until the hearing. If the hearing is delayed for any reason, you need to check with the court to ensure the temporary order is renewed until the hearing.

Step 5: Serve the abuser 

If you were successful in getting a temporary order only then this step is necessary, otherwise you will have to wait until you get one.

 

In the New Mexico legal system, whenever one party initiates a restraining order it needs to inform or serve the other party formally by delivering the court documents. That step is called serving the respondent, and is often seen in movies and TV shows as "You've been served".

Under the New Mexico law there are multiple ways in which the other party can be served.

 

You cannot  serve your papers yourself.

Option 1:  Ask a Cop (FREE)

A sheriff or marshal can serve the opposing party for you which is a big help. This service is offered for FREE. You will however need the address of the abuser. To ask the sheriff to serve your papers, you must have an address or location for the other side (restrained person). If the other side is in jail, the sheriff can serve them. If the other side is in prison, prison staff, not the sheriff, will serve your papers. Follow the instructions by the New Mexico Department of Corrections and Rehabilitation for serving someone in prison

 

Option 2: Ask a friend, relative or any adult (FREE)

You ask someone you know to be your server

  • 18 or over, and
  • not part of your case

Think about safety when choosing your server. Get step-by-step instructions for how to have someone else, not the sheriff, serve your court papers in the County.

 

Option 3: Hire a specialized courier

You can also hire a courier called  professional process server. You can search on Yelp or Google to get a list of options near you. Yelp Example. An example is ABC Legal Services.

You cannot hire regular couriers such as UPS, FedEx or US Postal Service unless in exceptional scenarios where the judge authorizes service by mail, but that's a whole different topic altogether.

Step 6: Present Evidence in a Court Hearing 

Attend a hearing: The court holds a hearing within a couple of weeks where the evidence is examined. If there is sufficient supporting evidence as determined by a Judge, a full restraining order is issued. At this point it becomes a crime for the abuser to break the conditions of the restraining order.

 

Step 7. Collect the Final Order

After the hearing, a final order may be issued. You can take a paper copy of the order with you. The order is typically valid for five years.

Costs

There are no costs associated with a Domestic Violence Restraining Order.

  • FREE forms : You can get the court forms for free, or prepare them using the guided experience below.
  • FREEfiling: There is fees for filing. Online filing platforms may charge a service fees

 

Process Duration

You can get a temporary restraining order the same day as you file.

Courts can have a cutoff of around 2 p.m.  for the same day service, so you need to file before then. Otherwise, the order would be issued the following day when courts open.

Courts are generally open Monday-Friday and closed on Saturday-Sunday.

The temporary order is valid until a formal hearing is held in which both parties need to be present. Typically a hearing is scheduled in 2 weeks of filing.

At the hearing a formal order may be issued

 

Risks

It is conceivable that following the submission of a civil protection order, the abuser particularly in domestic violence situations may react with anger due to the perceived loss of control over you and your household. In certain instances, the abuser may portray themselves as the victim and shift blame onto the actual victim they were mistreating.

The response of your abuser after the filing of a restraining order is unpredictable. While a Domestic Violence Restraining Order (DVRO) can provide legal protection, one should not automatically assume that it guarantees safety. The initial weeks post-filing can be particularly precarious, contingent on your abuser's reaction.

Despite the safeguards intended by a DVRO, abusers may retaliate through various means, such as:

  1. Physical assault or violence
  2. Harming or taking away children
  3. Damaging jointly owned property
  4. Disregarding the order and persisting with threats, possibly through intermediaries
  5. Inflicting harm or causing harm to pets
  6. Harassing your loved ones for information
  7. Engaging in stalking behavior
  8. Initiating a retaliatory restraining order against you
  9. Spreading false information about you in court documents, online, or publicly

Following the submission of a domestic violence Restraining order, it's important to continuously assess your situation and prepare for the potential escalation of your case into more violent territory.

 

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