Restraining Order Hearings
In New Mexico, accusations of domestic abuse are taken very seriously. If someone has petitioned the court for a restraining order against you, it is critical that you seek legal advise as soon as possible. A finding of domestic abuse on your record could greatly impact your life.
Costs to Consider:
1. A party accused of violating an order of protection granted under the Family Violence Protection Act can be charged with a misdemeanor criminal offense. If a restrained party is convicted once for a violation of the order of protection against them, upon a second accusation, the restrained party will face an additional misdemeanor criminal charge with the added mandate that they serve "not less than seventy-two consecutive hours" in jail upon a conviction. It should be noted that subsequent accusations may be charged as a felony depending on the circumstances. The restrained violator may also be held liable in civil court.
2. An order of protection granted against you could lead to the mandate that you "deliver any firearms in [your] possession, care, custody, or control to a law enforcement agency" and refrain from "purchasing, receiving, or possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect."
3. In an order of protection, among other impositions, while the order is effective, the court may grant sole possession of a residence or household to the protected party (petitioner); Award temporary custody of any children to the protected party and determine visitation rights along with child support; And restrict the restrained party from transferring, encumbering, or otherwise disposing of joint property of the parties.
4. An order of protection can show up on background checks, leading to the potential of limiting your employment options. For the same reasons, some applications for loans or housing could be affected.
SO, WHAT ARE YOUR OPTIONS?
Retaining an attorney to represent you at your hearing will ensure you secure the best possible outcome for yourself under the circumstances. Of course, what constitutes a favorable outcome will always depend on the circumstances of a case. Some methods your attorney may utilize to achieve a favorable result for you are by requesting denial of the petition through the presentment of legal arguments and evidence, aiding in the filing and argument of a counter-petition, strategically negotiating with the opposing party to favorably resolve the matter without a hearing and finding of abuse, and arguing against unduly burdensome impositions imposed within an order of protection if one is granted by the court.
The Process:
In New Mexico, an alleged victim of domestic abuse may petition the court under the Family Violence Protection Act for an order of protection (commonly referred to as a restraining order). Once a petition for an order of protection is properly filed against you, the court is mandated under New Mexico law to "immediately grant an ex parte temporary order of protection without bond if there is probable cause . . . to give the judge a reason to believe that an act of domestic abuse occurred."
Within ten (10) days after a court grants a petitioner's temporary order of protection, the court must hold a hearing to address the issue of whether to continue the order of protection against you. Your presence (as the respondent) at the hearing is required under penalty of contempt. At the hearing, unless a petition sufficiently alleges acts of stalking or sexual assault, a protection order shall not be granted against you unless there is first a finding that the petitioner and respondent are "household members" as defined under New Mexico law. At the conclusion of this hearing, if the judge makes a finding that the parties are household members and that domestic abuse has occurred, the judge "shall" enter an order of protection against the accused.
If a petition for an order of protection is granted at the conclusion of the hearing, within seventy-two (72) hours of receipt of the order, a law enforcement agency will enter the order into the National Crime Informatician Center (NCIC). The duration of a protection order can last for a period of six (6) months to several years depending on the circumstances.