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AN ACT

RELATING TO DOMESTIC ABUSE; EXPANDING AND CLARIFYING

DEFINITIONS; GRANTING FREE PROCESS TO VICTIMS; PROVIDING FOR

MUTUAL ORDERS OF PROTECTION; PROVIDING LIMITS ON INTERNET

PUBLICATION; CLARIFYING PROVISIONS OF THE FAMILY VIOLENCE

PROTECTION ACT; AMENDING AND ENACTING SECTIONS OF THE FAMILY

VIOLENCE PROTECTION ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 30-1-15 NMSA 1978 (being Laws 2002,

Chapter 34, Section 1 and Laws 2002, Chapter 35, Section 1) is

amended to read:

"30-1-15. ALLEGED VICTIMS OF DOMESTIC ABUSE, STALKING

OR SEXUAL ASSAULT--FORBEARANCE OF COSTS.--

A. An alleged victim of an offense specified in

Subsection B of this section is not required to bear the cost

of:

(1) the prosecution of a misdemeanor or

felony domestic violence offense, including costs associated

with filing a criminal charge against an alleged perpetrator

of the offense;

(2) the filing, issuance or service of a

warrant;

(3) the filing, issuance or service of a

witness subpoena; or

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(4) the filing, issuance, registration or

service of a protection order.

B. The provisions of Subsection A of this section

apply to:

(1) alleged victims of domestic abuse as

defined in Section 40-13-2 NMSA 1978;

(2) sexual offenses described in Sections

30-9-11 through 30-9-14 and 30-9-14.3 NMSA 1978;

(3) crimes against household members

described in Sections 30-3-12 through 30-3-16 NMSA 1978;

(4) harassment, stalking and aggravated

stalking described in Sections 30-3A-2 through 30-3A-3.1 NMSA

1978; and

(5) the violation of an order of protection

that is issued pursuant to the Family Violence Protection Act

or entitled to full faith and credit."

Section 2. Section 40-13-2 NMSA 1978 (being Laws 1987,

Chapter 286, Section 2, as amended) is amended to read:

"40-13-2. DEFINITIONS.--As used in the Family Violence

Protection Act:

A. "co-parents" means persons who have a child in

common, regardless of whether they have been married or have

lived together at any time;

B. "court" means the district court of the

judicial district where an alleged victim of domestic abuse

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resides or is found;

C. "domestic abuse":

(1) means an incident of stalking or sexual

assault whether committed by a household member or not;

(2) means an incident by a household member

against another household member consisting of or resulting

in:

(a) physical harm;

(b) severe emotional distress;

(c) bodily injury or assault;

(d) a threat causing imminent fear of

bodily injury by any household member;

(e) criminal trespass;

(f) criminal damage to property;

(g) repeatedly driving by a residence

or work place;

(h) telephone harassment;

(i) harassment; or

(j) harm or threatened harm to children

as set forth in this paragraph; and

(3) does not mean the use of force in self-

defense or the defense of another;

D. "household member" means a spouse; former

spouse; family member, including a relative, parent, present

or former stepparent, present or former in-law, child or

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co-parent of a child; or a person with whom the petitioner has

had a continuing personal relationship. Cohabitation is not

necessary to be deemed a household member for purposes of this

section;

E. "mutual order of protection" means an order of

protection that includes provisions that protect both parties;

F. "order of protection" means an injunction or a

restraining or other court order granted for the protection of

a victim of domestic abuse;

G. "protected party" means a person protected by

an order of protection; and

H. "restrained party" means a person who is

restrained by an order of protection."

Section 3. Section 40-13-3 NMSA 1978 (being Laws 1987,

Chapter 286, Section 3, as amended) is amended to read:

"40-13-3. PETITION FOR ORDER OF PROTECTION--CONTENTS--

STANDARD FORMS.--

A. A victim of domestic abuse may petition the

court under the Family Violence Protection Act for an order of

protection.

B. The petition shall be made under oath or shall

be accompanied by a sworn affidavit setting out specific facts

showing the alleged domestic abuse.

C. The petition shall state whether any other

domestic action is pending between the petitioner and the

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respondent.

D. If any other domestic action is pending between

the petitioner and the respondent, the parties shall not be

compelled to mediate any aspect of the case arising from the

Family Violence Protection Act unless the court finds that

appropriate safeguards exist to protect each of the parties

and that both parties can fairly mediate with such safeguards.

E. An action brought under the Family Violence

Protection Act is independent of any proceeding for annulment,

separation or divorce between the parties.

F. Remedies granted pursuant to the Family

Violence Protection Act are in addition to and shall not limit

other civil or criminal remedies available to the parties.

G. Standard simplified petition forms with

instructions for completion shall be available to all parties.

Law enforcement agencies shall keep such forms and make them

available upon request to alleged victims of domestic abuse."

Section 4. Section 40-13-3.1 NMSA 1978 (being Laws

1995, Chapter 176, Section 1) is amended to read:

"40-13-3.1. FORBEARANCE OF COSTS ASSOCIATED WITH

DOMESTIC ABUSE OFFENSES.--

A. An alleged victim of domestic abuse shall not

be required to bear the cost of:

(1) the prosecution of a misdemeanor or

felony offense arising out of an incident of domestic abuse,

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including costs associated with filing a criminal charge

against the alleged perpetrator of the abuse;

(2) the filing, issuance or service of a

warrant;

(3) the filing, issuance or service of a

witness subpoena;

(4) the filing, issuance or service of a

petition for an order of protection;

(5) the filing, issuance or service of an

order of protection; or

(6) obtaining law enforcement reports

relating to the alleged abuse or pattern of abuse.

B. No witness fee shall be charged where

prohibited by federal law."

Section 5. Section 40-13-3.2 NMSA 1978 (being Laws

1999, Chapter 142, Section 2) is amended to read:

"40-13-3.2. EX PARTE EMERGENCY ORDERS OF PROTECTION.--

A. The district court may issue an ex parte

written emergency order of protection when a law enforcement

officer states to the court in person, by telephone or via

facsimile and files a sworn written statement, setting forth

the need for an emergency order of protection, and the court

finds reasonable grounds to believe that the alleged victim or

the alleged victim's child is in immediate danger of domestic

abuse following an incident of domestic abuse. The written

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statement shall include the location and telephone number of

the alleged perpetrator, if known.

B. A law enforcement officer who receives an

emergency order of protection, whether in writing, by

telephone or by facsimile transmission, from the court shall:

(1) if necessary, pursuant to the judge's

oral approval, write and sign the order on an approved form;

(2) if possible, immediately serve a signed

copy of the order on the restrained party and complete the

appropriate affidavit of service;

(3) immediately provide the protected party

with a signed copy of the order; and

(4) provide the original order to the court

by the close of business on the next judicial day.

C. The court may grant the following relief in an

emergency order of protection upon a probable cause finding

that domestic abuse has occurred:

(1) enjoin the restrained party from

threatening to commit or committing acts of domestic abuse

against the protected party or any designated household

members;

(2) enjoin the restrained party from any

contact with the protected party, including harassing,

telephoning, contacting or otherwise communicating with the

protected party; and

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(3) grant temporary custody of any minor

child in common with the parties to the protected party, if

necessary.

D. A district judge shall be available as

determined by each judicial district to hear petitions for

emergency orders of protection.

E. An emergency order of protection expires

seventy-two hours after issuance or at the end of the next

judicial day, whichever time is latest. The expiration date

shall be clearly stated on the emergency order of protection.

F. A person may appeal the issuance of an

emergency order of protection to the court that issued the

order. An appeal may be heard as soon as the judicial day

following the issuance of the order.

G. Upon a proper petition, a district court may

issue a temporary order of protection that is based upon the

same incident of domestic abuse that was alleged in an

emergency order of protection.

H. Emergency orders of protection are enforceable

in the same manner as other orders of protection issued

pursuant to the provisions of the Family Violence Protection

Act."

Section 6. Section 40-13-4 NMSA 1978 (being Laws 1987,

Chapter 286, Section 4) is amended to read:

"40-13-4. TEMPORARY ORDER OF PROTECTION--HEARING--

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DISMISSAL.--

A. Upon the filing of a petition for order of

protection, the court shall:

(1) immediately grant an ex parte temporary

order of protection without bond if there is probable cause

from the specific facts shown by the affidavit or by the

petition to give the judge reason to believe that an act of

domestic abuse has occurred;

(2) cause the temporary order of protection

together with notice of hearing to be served immediately on

the alleged perpetrator of the domestic abuse; and

(3) within ten days after the granting of

the temporary order of protection, hold a hearing on the

question of continuing the order; or

(4) if an ex parte order is not granted,

serve notice to appear upon the parties and hold a hearing on

the petition for order of protection within seventy-two hours

after the filing of the petition; provided if notice of

hearing cannot be served within seventy-two hours, the

temporary order of protection shall be automatically extended

for ten days.

B. If the court grants a temporary order of

protection, it may award temporary custody and visitation of

any children involved when appropriate.

C. Except for petitions alleging stalking or

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sexual assault, if the court finds that the alleged

perpetrator is not a household member, the court shall dismiss

the petition."

Section 7. Section 40-13-5 NMSA 1978 (being Laws 1987,

Chapter 286, Section 5, as amended) is amended to read:

"40-13-5. ORDER OF PROTECTION--CONTENTS--REMEDIES--

TITLE TO PROPERTY NOT AFFECTED--MUTUAL ORDER OF PROTECTION.--

A. Upon finding that domestic abuse has occurred

or upon stipulation of the parties, the court shall enter an

order of protection ordering the restrained party to refrain

from abusing the protected party or any other household

member. The court shall specifically describe the acts the

court has ordered the restrained party to do or refrain from

doing. As a part of any order of protection, the court may:

(1) grant sole possession of the residence

or household to the protected party during the period the

order of protection is effective or order the restrained party

to provide temporary suitable alternative housing for the

protected party and any children to whom the restrained party

owes a legal obligation of support;

(2) award temporary custody of any children

involved when appropriate and provide for visitation rights,

child support and temporary support for the protected party on

a basis that gives primary consideration to the safety of the

protected party and the children;

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(3) order that the restrained party shall

not initiate contact with the protected party;

(4) restrain a party from transferring,

concealing, encumbering or otherwise disposing of the other

party's property or the joint property of the parties except

in the usual course of business or for the necessities of life

and require the parties to account to the court for all such

transferences, encumbrances and expenditures made after the

order is served or communicated to the restrained party;

(5) order the restrained party to reimburse

the protected party or any other household member for expenses

reasonably related to the occurrence of domestic abuse,

including medical expenses, counseling expenses, the expense

of seeking temporary shelter, expenses for the replacement or

repair of damaged property or the expense of lost wages;

(6) order the restrained party to

participate in, at the restrained party's expense,

professional counseling programs deemed appropriate by the

court, including counseling programs for perpetrators of

domestic abuse, alcohol abuse or abuse of controlled

substances; and

(7) order other injunctive relief as the

court deems necessary for the protection of a party, including

orders to law enforcement agencies as provided by this

section.

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B. The order of protection shall contain a notice

that violation of any provision of the order constitutes

contempt of court and may result in a fine or imprisonment or

both.

C. If the order of protection supersedes or alters

prior orders of the court pertaining to domestic matters

between the parties, the order shall say so on its face. If

an action relating to child custody or child support is

pending or has concluded with entry of an order at the time

the petition for an order of protection was filed, the court

may enter an initial order of protection, but the portion of

the order dealing with child custody or child support will

then be transferred to the court that has or continues to have

jurisdiction over the pending or prior custody or support

action.

D. A mutual order of protection shall be issued

only in cases where both parties have petitioned the court and

the court makes detailed findings of fact indicating that both

parties acted primarily as aggressors and that neither party

acted primarily in self-defense.

E. No order issued under the Family Violence

Protection Act shall affect title to any property or allow a

party to transfer, conceal, encumber or otherwise dispose of

another party's property or the joint or community property of

the parties.

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F. Either party may request a review hearing to

amend an order of protection. An order of protection

involving child custody or support may be modified without

proof of a substantial or material change of circumstances.

G. An order of protection shall not be issued

unless a petition or a counter petition has been filed."

Section 8. Section 40-13-6 NMSA 1978 (being Laws 1987,

Chapter 286, Section 6, as amended) is amended to read:

"40-13-6. SERVICE OF ORDER--DURATION--PENALTY--REMEDIES

NOT EXCLUSIVE.--

A. An order of protection granted under the Family

Violence Protection Act shall be filed with the clerk of the

court, and a copy shall be sent by the clerk to the local law

enforcement agency. The order shall be personally served upon

the restrained party, unless the restrained party or the

restrained party's attorney was present at the time the order

was issued. The order shall be filed and served without cost

to the protected party.

B. A local law enforcement agency receiving an

order of protection from the clerk of the court that was

issued under the Family Violence Protection Act shall have the

order entered in the national crime information center's order

of protection file within seventy-two hours of receipt. This

does not include temporary orders of protection entered

pursuant to the provisions of Section 40-13-4 NMSA 1978.

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C. An order of protection granted by the court

involving custody or support shall be effective for a fixed

period of time not to exceed six months. The order may be

extended for good cause upon motion of the protected party for

an additional period of time not to exceed six months.

Injunctive orders shall continue until modified or rescinded

upon motion by either party or until the court approves a

subsequent consent agreement entered into by the parties.

D. A peace officer shall arrest without a warrant

and take into custody a restrained party whom the peace

officer has probable cause to believe has violated an order of

protection that is issued pursuant to the Family Violence

Protection Act or entitled to full faith and credit.

E. State courts shall give full faith and credit

to tribal court orders of protection and orders of protection

issued by courts of other states. A protection order issued

by a state or tribal court against one who has petitioned,

filed a complaint or otherwise filed a written pleading for

protection against abuse by a spouse or intimate partner is

not entitled to full faith and credit if:

(1) no cross or counter petition, complaint

or other written pleading was filed seeking such a protection

order; or

(2) a cross or counter petition has been

filed and the court did not make specific findings that each

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party was entitled to such an order.

F. A restrained party convicted of violating an

order of protection granted by a court under the Family

Violence Protection Act is guilty of a misdemeanor and shall

be sentenced in accordance with Section 31-19-1 NMSA 1978.

Upon a second or subsequent conviction, an offender shall be

sentenced to a jail term of not less than seventy-two

consecutive hours that shall not be suspended, deferred or

taken under advisement.

G. In addition to any other punishment provided in

the Family Violence Protection Act, the court shall order a

person convicted to make full restitution to the party injured

by the violation of an order of protection and shall order the

person convicted to participate in and complete a program of

professional counseling, at the person's own expense, if

possible.

H. In addition to charging the person with

violating an order of protection, a peace officer shall file

all other possible criminal charges arising from an incident

of domestic abuse when probable cause exists.

I. The remedies provided in the Family Violence

Protection Act are in addition to any other civil or criminal

remedy available to the protected party or the state."

Section 9. Section 40-13-7 NMSA 1978 (being Laws 1987,

Chapter 286, Section 7, as amended) is amended to read:

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"40-13-7. LAW ENFORCEMENT OFFICERS--EMERGENCY

ASSISTANCE--LIMITED LIABILITY--PROVIDING NOTIFICATION TO

VICTIMS WHEN AN ALLEGED PERPETRATOR IS RELEASED FROM

DETENTION--STATEMENT IN JUDGMENT AND SENTENCE DOCUMENT.--

A. A person who allegedly has been a victim of

domestic abuse may request the assistance of a local law

enforcement agency.

B. A local law enforcement officer responding to

the request for assistance shall be required to take whatever

steps are reasonably necessary to protect the victim from

further domestic abuse, including:

(1) advising the victim of the remedies

available under the Family Violence Protection Act; the right

to file a written statement, a criminal complaint and a

request for an arrest warrant; and the availability of

domestic violence shelters, medical care, counseling and other

services;

(2) upon the request of the victim,

providing or arranging for transportation of the victim to a

medical facility or place of shelter;

(3) upon the request of the victim,

accompanying the victim to the victim's residence to obtain

the victim's clothing and personal effects required for

immediate needs and the clothing and personal effects of any

children then in the care of the victim;

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(4) upon the request of the victim, assist

in placing the victim in possession of the dwelling or

premises or otherwise assist in execution, enforcement or

service of an order of protection;

(5) arresting the alleged perpetrator when

appropriate and including a written statement in the attendant

police report to indicate that the arrest of the alleged

perpetrator was, in whole or in part, premised upon probable

cause to believe that the alleged perpetrator committed

domestic abuse against the victim and, when appropriate,

indicate that the party arrested was the predominant

aggressor; and

(6) advising the victim when appropriate of

the procedure for initiating proceedings under the Family

Violence Protection Act or criminal proceedings and of the

importance of preserving evidence.

C. The jail or detention center shall make a

reasonable attempt to notify the arresting law enforcement

agency or officer when the alleged perpetrator is released

from custody. The arresting law enforcement agency shall make

a reasonable attempt to notify the victim that the alleged

perpetrator is released from custody.

D. Any law enforcement officer responding to a

request for assistance under the Family Violence Protection

Act is immune from civil liability to the extent allowed by

law. Any jail, detention center or law enforcement agency

that makes a reasonable attempt to provide notification that

an alleged perpetrator is released from custody is immune from

civil liability to the extent allowed by law.

E. A statement shall be included in a judgment and

sentence document to indicate when a conviction results from

the commission of domestic abuse."

Section 10. A new section of the Family Violence

Protection Act is enacted to read:

"LIMITS ON INTERNET PUBLICATION.--A state agency, court

or political subdivision of the state, including a magistrate

or municipal court, judicial district, law enforcement agency,

county, municipality or home-rule municipality, shall not make

available publicly on the internet any information that would

likely reveal the identity or location of the party protected

under an order of protection. A state agency, court or

political subdivision may share court-generated and law

enforcement-generated information contained in secure,

government registries for protection order enforcement

purposes."

Section 11. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2008.

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