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Family Violence Protection Act – Procedure

In non-criminal cases involving allegations of domestic violence, the alleged domestic violence victim must first file a Petition for Order of Protection from Domestic Abuse to enlist the assistance of the court.   In most courts throughout New Mexico, including Albuquerque and Rio Rancho, these Petitions are filed in the Family Court divisions which handle divorce and family law matters.   The Petition forms are provided by the Court in the domestic violence division of the district court.

The New Mexico Family Violence Protection Act is primarily geared toward protecting the rights of victims of domestic violence.  However, the Act also provides protections for the alleged domestic violence abuser.  Therefore, the Petition for Order of Protection from Domestic Abuse must set forth specific grounds for a finding of domestic violence under the Act.  The alleged victim bears the burden of proving the allegations.

The acts of alleged domestic violence must meet the definitions of domestic abuse under the Family violence Protection Act.  First and foremost, the incident must involve “household members” as defined under the Act.  Once this threshold is met, there are a number of prohibited acts such as assault, battery, severe emotional distress, stalking, trespassing and so on.  The Petition is a sworn statement made by the alleged victim.  As such, false statements are perjury and punishable as such.

Once the Petition is verified, it is sent to a domestic violence commissioner or judge.  If the allegations meet the definitions of domestic violence under New Mexico law, a Temporary Order of Protection is issued.  The Petition is then served upon the alleged domestic violence abuser by the Sheriff.  The alleged victim is not required to pay for fees for filing, issuing or serving the Petition.  An evidentiary hearing, which is essentially a trial, is then set within about 10 days of service of the Petition on the alleged abuser.

If the court finds at the evidentiary hearing that domestic violence has occurred, an Order of Protection is entered for a period of 6 months.  The Order can be extended for an additional 6 months for good cause.    Perhaps more importantly, a finding of domestic violence has numerous and severe collateral consequences to the domestic violence offender.  These are typically far more serious for the offender than the no-contact provisions.

Because of the enormous consequences of these proceedings to both parties, each would be well advised to seek the advice of a New Mexico divorce and family law attorney.

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