If you have been charged with domestic violence, you probably have a number of questions. Likewise, if you have filed domestic violence charges or are the alleged victim in a domestic violence case, you probably have an equal number of question.
First, I would like to clarify the language used here. Specifically, I use the term “alleged victim” instead of victim. This is not intended to trivialize the seriousness of domestic abuse. It simply reflects the presumption of innocence which means a defendant is presumably innocent until proven guilty. Without delving into that issue, the presumption holds equally true in domestic violence settings.
Secondly, the “alleged victim” is often not a victim at all. On occasion, the alleged victim was actually the aggressor and had the wits to call the police in what is akin to a preemptive strike. In other cases, the alleged victim may not have intended for the defendant to be charged at all. In some cases, the police were called in a misguided attempt to get a third party mediator involved in an argument. This never works out as intended. In still other situations, the police may have been called to the scene by a third party who has misconstrued or otherwise mischaracterized the situation.
These are only a few common examples. There may be other situations as well where the “alleged victim” is not a victim. There may be situations where the “alleged victim” is a very real victim yet does not want to press charges. Each of these situations lead to many questions from both the defendant and the alleged victim.
The answer to these questions is very important due to the seriousness of domestic violence to the victims of domestic violence, the alleged victims, the defendants, and the families. It is very important to understand the process, the possible penalties, the collateral consequences of domestic violence, and the options available at each stage of the criminal process.
We have created this FAQ section to try to address the most common questions. However, we will probably miss a few or even a lot of important questions. If you have a question that is not answered here, feel free to contact us. Keep in mind that if you have an attorney, including one of the many very able public defenders, you should discuss these questions with your attorney. We do not get involved or otherwise interfere with an ongoing attorney client relationship.
Can the Court Address Child Custody During a Domestic Violence Case?
The issue of child custody comes up frequently in domestic violence cases. It will come up in a variety of ways and for a variety of reasons. The question that many have is whether or not the criminal court judge can address child custody issues.
The simple answer is No. The criminal court has no jurisdiction over child custody. However, like most legal questions, the answer is rarely simple.
The simple answer is “No, a criminal court cannot address issues of child custody in a criminal domestic violence case.” A judge presiding over a criminal case has no jurisdiction (i.e. authority) over family court matters.
Criminal Court Has No Child Custody Jurisdiction, But…
Although the criminal court judge will not address chlld custody, there is often a related family law court domestic abuse proceeding. That court may address child custody albeit on a temporary basis.
That being said, as is the case with many legal issues, the simple answer is not so simple in practice. It is important to keep in mind that though a criminal court may not have jurisdiction, these cases often have a related civil court case open on a Petition for Protection from Domestic Abuse under the New Mexico Family Violence Protection Act. This is bit beyond the scope of this article, but suffice it to say that the judge or hearing officer in that proceeding will have authority to address child custody.
Keep in mind also that though the court may not be able to issue orders regarding child custody, the orders of the court may very well impact contact with the children and therefore child custody. This influence over child custody or contact with the children will come in the form of the no-contact order issued in every domestic violence case.
No Contact Orders and Child Custody
A no-contact order means no contact with the alleged victim. If the children are in the custody of the alleged victim, then by default there will be no contact with the children.
The no-contact order and the impact it has on child custody has two sides. First, it may be that the alleged victim desires to maintain contact and a relationship between the defendant and the children. On the other hand, the alleged victim may not want the defendant to have any contact with the children.
In case the alleged victim desires contact with the children, it may be necessary to address the matter with the court. The no-contact order means no contact at all, including contact for the purpose of child visitation or custody matters. If contact between the parties were necessary to facilitate custody and time-sharing issues, then caution would dictate modification of the no-contact order.
On the flip side of that, the alleged victim as mentioned may not want any contact between the defendant and the children. Sometimes this is for good reason and motivated by the desire for safety of the children and the alleged victim. Other times, it may be motivated by less pure motives. In either case, if the defendant wants contact with the children, it may be necessary to open a case in the family law court.
Family Court and the Criminal Court No-Contact Order
It may be necessary to seek relief in family court if the no-contact order is not lifted in the criminal court proceeding. However, the family court may be reluctant or unable to issue orders contradictory to the criminal court orders.
The family law court will be able to address custody and time-sharing despite the no-contact order. To be clear, the family law court will not override the criminal court or lift the no-contact order while a criminal domestic violence case is pending. However, the family law court may address custody and time-sharing through the issuance of orders which address the safety concerns underlying the no-contact order.
In other words, the court can issue custody and time-sharing matters in a way that avoids contact between the parties. There are many ways the court might do this. It will depend on the circumstances of the parties how this will be accomplished.
In conclusion, although the criminal court judge will not issue orders on custody and time-sharing, the courts no-contact order can have very real and enforceable conditions that relate to child custody. As discussed at length in other articles on our site, the no-contact order is taken very seriously and violations are treated quite harshly. It is best to proceed with extreme caution and make sure that all the appropriate measures are taken to avoid violations of the no-contact order.
Seek Legal Guidance – Violations of the No-Contact Orders are Serious No Matter How Well Meaning
Violations of domestic violence, whether innocent, inadvertent, well-meaning or otherwise, can have very serious consequences. This applies to both criminal and family court. Violations can result in jail, additional criminal charges, contempt, attorney fees, suspension of time-sharing and all manner of other negative consequences.
Be very careful how you proceed and know the rules so you do not find yourself on the wrong side of the law.
What if my Wife Wants to Drop the Domestic Violence Charges?
The question of whether an alleged victim (frequently the wife) can drop domestic violence charges is probably the most common question related to domestic violence charges. This issue comes up all the time for a number of reasons. It also comes up in a variety of forms. They come up from the defendant as well as the alleged victim.
Naturally, the same question comes up on the wife’s end though domestic violence charges are clearly more commonly filed against the husband. Nor is the question exclusive to the marital relationship. The same question will come up with boyfriends, girlfriends and fiance’s. So when I use the terms “wife”, I am referring to alleged victims of domestic violence broadly.
In any event, the answer to the question is somewhat complicated and entirely dependent on the circumstances. And to get the short answer out of the way quickly, it probably does not matter to the judge or the prosecutor that your wife wants to drop the charges!
Circumstances surrounding the Dropping of Domestic Violence Charge
The circumstances that may influence the judge and prosecutor include not just the facts of the case such as the alleged act of domestic violence, the existence of injuries, the defendant’s criminal history, and the history of domestic violence in the household. The circumstances will also include the court, the judge, and the prosecutor.
There are numerous factors involved in the dismissal of domestic violence charges. The wishes of the alleged victim are not necessarily determinative.
Regarding the factual circumstances, if the facts surrounding the alleged domestic violence suggest danger to the alleged victim or dangerous propensities on the part of the defendant, it probably matters very little to the judge or the prosecutor that the wife or other alleged victim wants to drop the charges. For instance, if there are weapons, the alleged victim’s wishes may be immaterial. Keep in mind also that “weapon” can be anything used to cause or threaten harm from a teacup to a shotgun.
Weight Given to Factors for Dropping Domestic Violence Charges
If there are injuries, the wife’s/alleged victim’s wishes will likely be ignored as well. Injuries suggest to the court and prosecutors not only a seriousness to the events in question but perhaps deeper problems in the household beyond the immediate event.
A history of domestic violence will weigh heavily against dismissal of domestic violence charges no matter what the alleged victim’s wishes.
A criminal history on the part of the defendant also weighs against a dismissal. This is particularly so if the history involves alcohol, drugs or violence. In particular, a history of domestic violence is not looked upon kindly by the court or prosecutor and will likely negate any consideration of the alleged victim’s wishes.
Finally, judges and prosecutors are apt to err on the side of caution. And caution means protecting the alleged victim, not the defendant. As such, even in what might seem trivial or even questionable incidents of domestic violence, many if not most prosecutors will not dismiss the case on the wishes of the alleged victim alone.
Seek Legal Guidance – Complexities and Consequences Abound!
In short, the wishes of the alleged victim more often than not have little or no bearing on the prosecutor’s decision to move forward with the case. Domestic violence is a serious issue in New Mexico (and elsewhere). The stakes are high for all involved if mistakes are made. This includes the defendant, the alleged victim, the family, the courts and the prosecutors.
What Can I Do to Return Home After Domestic Violence Charges?
There are numerous conditions of release issued with domestic violence charges, The first and most important is the no-contact order.
Of you are facing domestic violence charges, you will soon learn that you are to have no contact with the victim while the case is pending. This is so-called no-contact order is taken very seriously and violations can result in immediate arrest. The violation can be charged as contempt of court or even result in additional charges.
Many defendants and alleged victims do not want the no-contact order and want to know if and how the defendant can return to the home. It is important to understand the law and consequences. A an experienced domestic violence attorney can help make sure the proper steps are taken to safely return home.
Motion to Modify Conditions of Release to Lift No-Contact Order
The short answer and the safest route to returning home is to file a motion to modify the conditions of release to lift the no-contact order but there is more to it.
The short answer and the safest route to returning home is to file a motion to modify the conditions of release to lift the no-contact order. Though many defendants will return home even in the face of the no-contact order, this can be risky with potentially severe consequences.
The purpose behind the no-contact order is obvious. It is meant to protect victims of domestic abuse against further abuse. It is also intended to prevent the intimidation (which may come in many forms) of alleged victims by the defendant to prevent the alleged victim from cooperating with the prosecutor on the case.
The no-contact order is issued in every domestic violence case from the most violent to the most inane. Whether the case involves very serious acts violence or much less severe, sometimes even seemingly trivial conduct, a violation of the no-contact order is taken very seriously by the courts.
Consequences for Violations of No-Contact Orders from the Court
Violation of the no-contact order has serious consequences including jail pending trial, additional charges and complications in the resolution of your domestic violence charges.
In turn, the consequences for violating the order can be very serious. In fact, in many cases such as the domestic violence property damage, the violation may come with more serious consequences than the actual charges. Violations can also make resolving the charges quite difficult.
In short, violation of a no-contact order can carry jail time until the criminal process has concluded. This can mean significant jail time particularly when a trial is necessary since it can take months to get a case to trial.
Consequences for Violations of No-Contact Orders on a Family
Having said all that, the no-contact order can have devastating consequences for a family. In fact, it is often the alleged victim who is asking this question of how to get the husband/wife/parent home. The no-contact order will often require the defendant parent to get other housing at great expense basically doubling the housing costs to the family. Beyond the financial strain, the no-contact order can hugely disrupt a family due to child care and other family management issues.
So the question of what to do to lift the order is an important one. It is generally unwise to take matters into your own hands and simply move home. Though it is one of those situations of “no harm, no foul,” the stakes can be pretty high. From the more cynical point of view, the no-contact order can be used as a weapon against the defendant. And it is not uncommon that a violation of the no-contact order is reported on the most trivial disagreements (think “I am not going to argue with you, I will call the police if I have to…”).
Steps to Drop a Domestic Violence No-Contact Order
Lifting the no-contact order is not necessarily a simple process. The alleged victim will have to appear in court to let the judge know he or she is safe.
Because of the risks associated with violating the order, a defendant should file a motion to modify the conditions of release to lift the no-contact order. The agreement and cooperation of the alleged victim is absolutely necessary. The alleged victim will have to attend the hearing on the motion as will the defendant. The judge and prosecutor are going to want to hear it directly from the alleged victim in open court that the victim feels safe and does not believe the defendant to be a threat to the alleged victim or other household members.
If the alleged victim is willing to make these statements to the judge, most but certainly not all judges will lift the no-contact order. Additionally, there are circumstances where even the most lenient judge will refuse to lift the no-contact order. In brief, the judge may refuse to lift the order if the circumstances and history of the household, the defendant, and the alleged victim suggest that lifting the order would be unwise.
Seek Legal Guidance
It is important to have the guidance of an experienced domestic violence attorney. There are many possible miscues here with many possible consequences for your defense, your freedom and your family.
It is very important that you do not take actions on your own without first consulting with an attorney. Again, the consequences can be quite severe.
If I Received a Subpoena, Do I Have to Go to Court Even if I Don't Want to Pursue Domestic Violence Charges?
The short answer to this is that a subpoena is a legally binding court order for you to appear in Court. Failure to abide by a court order can result in a finding of contempt. A finding of contempt can result in jail time. That is the short answer. The longer answer is that this question is slightly more complicated.
There are many cases of alleged domestic violence where the alleged victim does not want to show up to testify against the defendant. There are many reasons for this, some valid and some not. Without going into the reasons for not wanting to testify against a defendant, a legally issued subpoena is a court order to get the alleged victim or other witnesses to court.
This raises several other questions. First, what is a legally issued subpoena? In order to be legally binding, the subpoena must be legally served on the alleged victim or other witness. Second, what happens if I do not go to court despite the subpoena?
The subpoena must be handed to the alleged victim personally.
Addressing the first question, the subpoena must be personally served on the alleged victim or witness to be legally issued and binding. The subpoena cannot be mailed. Nor can the subpoena be left on the door or mailbox. The subpoena must be handed to the alleged victim personally. In some cases, the subpoena may be left with an adult member of the household.
If the subpoena is not legally served on the alleged victim or witness, then there is no legally binding order for the person to appear in court. As such, there is no power of contempt in the court. On the other hand, if the subpoena is properly served on the alleged victim or witness, then that person is obligated to go to court under the threat of contempt. This can create a lot of stress for alleged victims who do not want to pursue the domestic violence charges.
Consequences of No-Show on Subpoena Vary with Circumstances
There are many variables that will determine if a bench warrant is issued for failure to attend a hearing under subpoena. These include the individual judge, past history of domestic violence in the household, seriousness of the charges, whether there were injuries, and more.
So the second and ultimate question is what can or will the judge do if I do not show up for court despite a legal subpoena? This question is perhaps most complicated of all. The answer depends on many variables. These include the nature and seriousness of the alleged acts of domestic violence, the history of domestic violence in the household, the criminal history of the defendant and other circumstances of the parties and the alleged incident. In addition, the outcome may also depend on the court and the judge.
Because of the potential finding of contempt, there are many cases where it is advisable for the alleged victim to obtain his or her own attorney. There are many variables involved in the answer to the question of “What happens if I do not go to court despite a subpoena?” As such, the guidance of an attorney would likely prove very helpful.
Seek Legal Guidance
Because contempt and bench warrant is possible, proceed with caution and seek legal guidance to understand your rights.
Because it is possible that you may be held in contempt for a failure to show in court on a subpoena, it is advisable to seek the assistance of counsel. This is particularly so if the prosecutor’s office is behaving aggressively toward you which is not too uncommon.
The help of an experienced criminal defense attorney can go a long way toward alleviating many of your concerns while also determining the appropriate course of conduct in your particular case.
What are the Standard Conditions of Release in a Domestic Violence Case and Can They be Changed?
Some of these conditions are unworkable for work and family. However, simply ignoring them is not an option.
To protect yourself, you should seek modification. A criminal defense attorney experienced with modification of conditions of release can help.
Some of these may be modified and others may not. We will address those that may not be modified first.
Some Conditions of Release Cannot be Modified
There are some conditions that cannot and will not be modified by the court. For the most part these should make sense to most.
Alcohol and Drugs
The most notable and among the most frequently violated condition that cannot be modified is the prohibition on the use of drugs or alcohol.
The first and perhaps the most important, due to the frequent violation, is the prohibited use of alcohol or illegal drugs.
Yes, this does mean no drinking while the case is pending. It is extremely important to abide by this condition. The courts and judges in New Mexico (and presumably all states) take this very seriously due to the relationship between alcohol and domestic violence.
The condition does apply to marijuana as well. Regardless of one’s position on marijuana, the court’s position is that it is an illegal drug and is strictly prohibited as a condition of release. In fact, this is among the conditions most likely to be violated due to the long period of time that marijuana stays in your system.
Violations of Law
The condition of release prohibiting violations of law is strictly enforced and non-modifiable.
The remaining conditions that cannot be modified, for the most part, involve prohibitions on violating the law. These conditions are rather common sense based since the prohibitions against violating the law stand for all New Mexico citizens. The difference is that violation of these prohibitions while a domestic violence case is pending may and often do result in jail time until the case is over.
The conditions state that a defendant will not violate State or Federal law, will not drive without a license and will not drive without proof of insurance. Again, these may not be modified and it is important to abide by them.
Conditions of Release that can be Modified
The non-contact order, travel restrictions and gun ownership are typically the provisions that require modification.
Now for the conditions that may be modified. These may and should be modified if they are going to be problems with compliance.
We will begin with those that are typically of most concern, the no-contact order, travel restrictions and gun ownership.
Lifting the No-Contact Order
Additional conditions of release can be modified under very strict criteria. First and most frequently, is the modification of the no-contact order.
Finally, there are a few remaining conditions that may be modified under very strict criteria. The first is the no-contact order prohibiting contact between the defendant and the alleged victim. The no-contact order may be modified in limited circumstances through a motion to modify.
Possession of Firearms
Though firearms possession is often required for employment, violation of this condition can still result in very serious consequences.
The second condition that may be modified under limited circumstances is the prohibition against the possession of firearms or deadly weapons. This one may and must be modified for employment purposes.
In very rare situations, it may be modified for hunters/sportsmen. This modification does not come up frequently and might be summarily denied.
The restriction on travel outside the county is often unworkable due to work and family obligations. This is very easy to address. Failure to address it can have consequences.
Finally, there is often a restriction on travel outside the county in which the defendant resides. This can be an impossible provision for the defendant due to work, school and/or family obligations.
Likewise, this condition can severely affect the the family. As such, New Mexico courts will generally allow the modification of travel conditions based upon need.
Hiring an Attorney
You need not but probably should hire an attorney for your domestic violence case. You will be held to all court rules and deadlines regardless of whether you have an attorney.
There are two conditions that are issued related to hiring an attorney. The first states that the defendant will hire an attorney within a specified period of time, usually one week. The second states that the defendant will keep his or her attorney informed of any change of address. These are for the protection of the defendant and may be waived.
A defendant does not have to have an attorney. Though it is generally exceedingly unwise, a defendant may represent him or herself. In the event that the defendant decides to do this, the second part of the equation is moot.
However, the defendant must then keep the court informed of any change of address. This is important for notices, such as hearing notices. The fact that a defendant did not get a notice because of a move will not excuse a failure to appear which will result in a bench warrant.
Seek Legal Counsel for Modification of Conditions of Release
If you are charged with domestic violence, you should discuss these conditions with your attorney. In particular, you should discuss any potential problems with following these conditions.
Do not assume that necessity will excuse a violation. To be safe, seek an order from the court modifying the conditions.
If there is a modifiable condition that will cause problems such as travel or firearms related to employment, then speak with your attorney about filing a motion to modify. You should not assume that because these are valid grounds that a violation will not result in severe consequences.
If I Give a Written Statement, Will the DA Drop the Domestic Violence Charges Against My Husband/Wife...?
It is not infrequent that an alleged victim wants to drop domestic violence charges. In fact it is fairly common. There are many reasons for this, some good and some not so good.
No matter what the reasons, dropping domestic violence charges is not as simple as one might expect. In fact, the prosecutor will rarely drop the charges until the process has run its course.
This would include the situation where the alleged victim provides a written statement. In fact, this written statement may do more harm than good, motivating the prosecutor to press on.
Proceed with caution.
Be Cautious in Decision to Give Written Statement
Many times, the alleged victim wants to provide a written statement. These can be helpful depending on the contents of the statement. However, if the statement says anything other than there was no act of domestic violence, then it is not helpful. Instead, these statements can sometimes do more harm than good.
For example, a statement to the effect that the defendant made a mistake, is generally a good guy, this rarely/never happens, we need him back home, I love him and so on will do little to achieve the goal of a dismissal. Instead, the statements suggesting that there was an act of domestic violence will be used at trial if it gets to that point. If necessary, these statements will even be used against the alleged victim to impeach any conflicting testimony that he or she may give.
Written statements are generally only helpful if they state that no act of domestic violence occurred.
Again, these statements are generally only helpful if they state that no act of domestic violence occurred. Yet even then, the statement alone may be insufficient for an outright dismissal. Judges and prosecutors are extremely reluctant to simply dismiss domestic violence charges unless and/or until they have to.
Reasons Domestic Violence Charges Do Not Just Get Dropped
There are a number of reasons for this. First, the judges and prosecutors take domestic violence charges very seriously and they take the role of protecting victims very seriously. Second, as mentioned, there are many reasons for wanting to drop domestic violence charges. These are not all valid reasons, at least from the court’s and prosecutor’s perspective. In fact, many true victims of domestic violence may wish to dismiss the charges even though dismissal will put them at risk of further violence. Out of an abundance of caution, prosecutors often totally discount the stated basis in a letter from the alleged victim.
The best thing for an alleged victim to do in this situation is to get his or her own attorney.
So the question that arises is what should the alleged victim do when in fact there is a legitimate basis for dropping the charges and he or she wants to provide a written statement? The best thing for an alleged victim to do in this situation is to get his or her own attorney. This means getting an attorney other than the attorney representing the defendant. Hiring an attorney can be expensive. However, if the charges were wrongfully filed and should be dismissed, this is the best course of action if at all possible.
Many Domestic Violence Resources in New Mexico
If you are a victim/alleged victim of domestic violence or a defendant in a domestic violence case, there are many very good domestic violence resources in New Mexico. These are helpful for both those with and without financial resources. These are worth exploring no matter where you fit in the wide spectrum of domestic violence charges.
What Happens If I Violate a No-Contact Order?
This question comes up all the time in domestic violence cases. It often comes up after a violation has already occurred. Perhaps more frequently, it comes up when the parties wish to have contact.
In fact, the most common situation in which this and related questions come up is in a situation where the parties desire the defendant to be allowed to move back home.
1. Can I move back home with domestic violence charges pending?
2. How can I move back home (i.e. how do I modify the conditions of release to get rid of the no-contact order)?
3. What if I move back home in violation of the conditions of release?
It may comes as a surprise but it is actually more complicated when the parties both wish to have contact than when they don’t. We will start with the latter situation since it is pretty clear-cut.
Non-Consensual Contact with the Alleged Victim
Let’s start with the easier situation of violating the no-contact order when the alleged victim has no desire for contact.
A violation of any of the conditions of release can result in arrest. Non-consensual contact is most certainly a violation.
In this situation, the defendant will be facing a host of possible very serious consequences. First, a violation of any of the conditions of release can result in arrest. In addition, the defendant can be held on the violation until the case has been completed either by plea or at trial.
Any violation of conditions of release is taken extremely seriously by the courts in New Mexico. New Mexico judges are particularly sensitive to violations of domestic violence no-contact orders. Chances are that a violation of the no-contact order in the absence of some very strong and persuasive support on the part of the alleged victim will result in immediate arrest.
In addition, there is a good chance that the defendant will be jailed for some period of time. In cases of serious violations such as subsequent acts of domestic violence, the defendant will be jailed until the case has concluded. Such acts of domestic violence would include physical violence, verbal threats, stalking, repeated phone calls (or texts, emails, Facebook posts…) as well as any other acts of domestic violence as defined fairly broadly under the law.
Consensual Contact with the Alleged Victim
Even consensual contact can be a violation with serious consequences and “consensual” can quickly turn to non-consensual.
Keep in mind also that even if the alleged victim is supportive and does not wish to see the defendant jailed, the judge is not bound by the alleged victim’s wishes. Thus, the defendant might be jailed even if the alleged victim does not want it and strongly vocalizes this position. This situation may occur on a first time violation of the no-contact order but is more likely in cases of repeated violations.
Even consensual contact can be a violation. Keep in mind also that “consensual” can often quickly turn to non-consensual if the alleged victim so chooses. This is not as uncommon as many might think, as is one very good reason for getting an order lifting the no-contact order.
New Criminal Charges
The violation of the no-contact order itself can also constitute a new criminal act, resulting in additional criminal charges.
Finally, there are perhaps more serious consequences of violating the no-contact order. In cases of additional acts of domestic violence, the defendant will almost certainly be charged with subsequent crimes. The violation of the no-contact order itself can also constitute a new criminal act.
Under New Mexico law, aggravated stalking may be charged as a knowing violation of a protective order or no contact order. Moreover, repeated offenses of stalking (i.e. more than one) may be charged as a fourth degree felony.
Do Not Violate the No-Contact Order!
Do not violate the no-contact order, if you do be prepared for very serious consequences.
In short, violation of a no-contact order is extremely serious. It is serious even if the alleged victim consents to the violation. It is extremely serious and inadvisable to violate a no-contact order through non-consensual contact with the alleged victim.
If you are in this situation, you should immediately speak with an attorney experienced in domestic violence matters before you act. There may be steps that can be taken to lift the no-contact order if the alleged victim wants to do so and is willing to show up for court to state this to the judge.
To be clear, there is no excuse and nothing that can be done in advance to protect you in case of non-consensual contact with the alleged victim.
In conclusion, do not violate the no-contact order and if you do, be prepared for very serious consequences.