What is the legal definition of domestic abuse in New Mexico?
This section 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;
- 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.1
1 N.M.S.A. § 40-13-2(D)
What types of protection orders are available? How long do they last?
An emergency order can be granted after a police officer or sheriff requests one from the court. This generally can be done if you call law enforcement after an episode of domestic abuse. (Note: In some counties, law enforcement may not provide this service. If emergency orders are not available in your area, you will need to wait until the next business day and go to the district court to file for a temporary protection order.) To issue an emergency order, the judge must find that there are reasonable grounds to believe that you or your child is in immediate danger of domestic abuse following an incident of domestic abuse. You can receive an emergency order without a court hearing and without the abuser’s knowledge. The order may forbid the abuser from threatening to commit or committing further acts of domestic abuse, forbid the abuser from contacting you and grant you temporary custody of any minor children. It lasts 72 hours, or until the close of the next business day; whichever of those is later. You should file for a temporary order during business hours at the district court as soon as you are able to.1
A temporary protection order is designed to protect you until the court hearing for a permanent protection order. Like an emergency order, you can receive a temporary order without a court hearing and without the abuser’s knowledge. A judge will grant the temporary order only if s/he believes, based on the affidavit or petition that you fill out, that domestic abuse has occurred. If the judge grants a temporary order of protection, a hearing for a permanent order may be held within 10 days and the court will notify the abuser of the hearing. In a temporary protection order, the judge may award temporary custody and visitation of any children involved. If the judge does not grant a temporary order, a hearing for a permanent order may be held within 72 hours.2
A permanent protection order can be issued only after a court hearing in which you and the abuser both have a chance to appear and present evidence, testimony, etc.3 Permanent protection orders can last up to six months if they grant support or custody of a child (but can be extended for an additional six months). Other permanent orders (injunctive orders) will continue until such time that one party asks for a modification or cancellation of the order.4 However, a judge may put an expiration date on the protection order based on the judge’s discretion.
To find out what a permanent protection order may contain, see How can a protection order help me?
Note: If both parties try to get an order of protection and a judge determines that both parties acted primarily as aggressors and that neither party acted primarily in self-defense, the judge may grant a mutual order of protection.3
1 N.M.S.A. § 40-13-3.2
2 N.M.S.A. § 40-13-4
3 N.M.S.A. § 40-13-5
4 N.M.S.A. § 40-13-6(C)
What protections can I get in a protection order?
An emergency ex parte order of protection, which can be issued at the request of law enforcement, can do any of the following:
- forbid the abuser from engaging in further acts of abuse, or from threatening to commit acts of abuse, against you or any of your household members;
- forbid the abuser from contacting you in any way; and
- grant you temporary custody your children.1
A temporary protection order can:
- forbid the abuser from abusing you your household members;
- forbid the abuser from contacting you in any way (except through your lawyer if you have one);
- order the abuser to stay away from you, your home, school and work;
- grant you temporary custody your children (and order the abuser to have no contact with them or arrange for a way for the children to be in contact with the abuser);
- order both you and the petitioner to not remove your children from the state or disenroll them from school while the temporary order is in effect;
- award child support and temporary support for you when appropriate; and
- order the abuser to leave the home and surrender keys to the home to law enforcement or allow law enforcement to accompany you to get your belongings if you are leaving the home.2
A permanent protection order can:
- forbid the abuser from engaging in further acts of abuse, or from threatening to commit acts of abuse;
- forbid the abuser from contacting you in any way;
- order the abuser to let you retrieve your belongings from a home you share with him/her;
- award you temporary custody of any children involved and determine visitation rights, child support and temporary support for you when appropriate;
- forbid the abuser from hiding, giving away or throwing away your belongings;
- order the abuser to pay for any expenses related to the domestic abuse including medical, counseling, replacement or repair of your damaged property, lost wages, and the cost of temporary shelter;
- order the abuser to attend counseling sessions (and the court may also order you to attend counseling for victims);
- evict the abuser from a residence you share with him/her or order the abuser to provide a temporary residence for you; and
- order the abuser to hand over any firearms in his/her possession to the authorities and forbid him/her from buying firearms.3
Whether a judge orders any or all of the above depends on the facts of your case.
If your protection order evicts the abuser from the residence you share with him/her, you can ask a local law enforcement officer to help put you in possession of the residence or carry out any other item granted in your protection order.4
1 N.M.S.A. § 40-13-3.2(C)
2 See New Mexico Courts website, temporary order of protection form
3 N.M.S.A. § 40-13-5(A)
4 N.M.S.A. § 40-13-7
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.