Often times, the alleged domestic violence offender is the actual victim of domestic violence. The person that files the Petition for Order of Protection from Domestic Abuse often does so as a strategic to preempt the true victim. In these cases, the true victim can file a Counter-Petition for Order of Protection from Domestic Abuse against the original petitioner.
Counter-Petition forms are available through the court. Many courts such as Albuquerque and Rio Rancho have Domestic Violence Offices where both the petition and counter-petition are filed. Often times, the clerks will provide instruction on properly completing the counter-petition.
The Counter-Petition follows the same format as the Petition for Order of Protection from Domestic Abuse. There must be specific allegations of domestic violence which meet the definition of domestic violence under the New Mexico Family Violence Protection Act which includes actual physical abuse, threats of violence, stalking, harassment or other conduct prohibited by the Act. Failure to state specific allegations meeting the definition of domestic violence will result in dismissal of the Counter-Petition.
Just like the Petition for Order of Protection, the Counter-Petition may request the court to address possession of the community residence, child custody and time-sharing, child support, anger management and counseling. Again, like the original petition, these ancillary issues to the no-contact provisions are temporary in nature. Jurisdiction over these issues remains with the District Court Judge.
Upon the filing of the original Petition, a hearing date will be set usually within ten days. Consequently, the filing of a Counter-Petition must be done without delay in order for it to be addressed at the hearing. The Counter-Petition, like the original petition, must also be served on the other party to be heard by the Domestic Violence Hearing Officer. Like the original Petition, the Counter-Petition is served by the Sheriff.
At the hearing, the Domestic Violence Hearing Officer will hear both parties and issue its finding. Many times, it is the Counter-Petition that prevails with an Order of Protection from Domestic Abuse for 6 months is issued against the original Petitioner. The allowable terms of the Order of Protection on a Counter-Petition are no different than that on an original Petition.
Just as Petitions for Order of Protection are abused, Counter-Petitions are abused as well. A party considering a Counter-Petition should seek the advice of a New Mexico divorce and family law attorney. Despite the appeal of going on the offensive, filing false allegations of domestic violence whether in a Petition or Counter-Petition is highly inadvisable. Serious repercussions can result particularly in the area of child custody and time-sharing. And if that is not enough, it is perjury and punishable as contempt of court.