HOUSE BILL 187
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Joseph Cervantes
FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE
AN ACT
RELATING TO LAW ENFORCEMENT; ENACTING THE UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION ORDERS ACT; PERMITTING REGISTRATION OF FOREIGN DOMESTIC VIOLENCE PROTECTION ORDERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 10 of this act may be cited as the "Uniform Interstate Enforcement of Domestic Violence Protection Orders Act".
Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act:
A. "foreign protection order" means a protection order issued by a tribunal of another state;
B. "issuing state" means the state whose tribunal issues a protection order;
C. "mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent;
D. "protected individual" means a person protected by a protection order;
E. "protection order" means an injunction or other order, issued by a tribunal under the domestic violence, family violence or antistalking laws of the issuing state, to prevent a person from engaging in a violent or threatening act against, harassment of, contact or communication with or physical proximity to another person;
F. "respondent" means the person against whom enforcement of a protection order is sought;
G. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. "State" includes an Indian pueblo, tribe, nation or band that has jurisdiction to issue protection orders; and
H. "tribunal" means a court, agency or other entity authorized by law to issue or modify a protection order.
Section 3. [NEW MATERIAL] JUDICIAL ENFORCEMENT OF A FOREIGN PROTECTION ORDER.--
A. A person may seek enforcement of a valid foreign protection order in a New Mexico tribunal. The tribunal shall enforce the terms of the order, including terms that provide relief that a New Mexico tribunal would lack power to provide but for this section. The tribunal shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection. In a proceeding to enforce a foreign protection order, the tribunal shall follow New Mexico procedures for the enforcement of protection orders.
B. A New Mexico tribunal shall not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.
C. A New Mexico tribunal shall enforce the provisions of a valid foreign protection order governing custody and visitation, if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state.
D. A foreign protection order is valid if it:
(1) identifies the protected individual and the respondent;
(2) is currently in effect;
(3) was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and
(4) was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an ex parte order, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued in a manner consistent with the due process rights of the respondent.
E. A foreign protection order valid on its face is prima facie evidence of its validity.
F. Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
G. A New Mexico tribunal may enforce provisions of a mutual foreign protection order only if:
(1) both parties filed a written pleading seeking a protection order from the tribunal of the issuing state; and
(2) the tribunal of the issuing state made specific findings that each party was entitled to a protection order.
Section 4. [NEW MATERIAL] NONJUDICIAL ENFORCEMENT OF FOREIGN PROTECTION ORDER.--
A. A New Mexico law enforcement officer, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a New Mexico tribunal. Presentation of a foreign protection order that identifies both the protected individual and the respondent and that, on its face, is currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this section, a protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.
B. If a foreign protection order is not presented, a New Mexico law enforcement officer may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.
C. If a New Mexico law enforcement officer determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
D. Registration or filing of a foreign protection order in New Mexico is not required for the enforcement of a valid foreign protection order pursuant to the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
Section 5. [NEW MATERIAL] REGISTRATION OF FOREIGN PROTECTION ORDER.--
A. A person may register a foreign protection order in New Mexico. To register a foreign protection order, a person shall present to the clerk of the district court:
(1) a copy of the foreign protection order that has been certified by the issuing tribunal; and
(2) an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the foreign protection order is currently in effect.
B. The clerk shall register the foreign protection order in accordance with this section. After the foreign protection order is registered, the clerk shall furnish to the person registering the order a certified copy of the registered order and shall send a copy of the registered order to the local law enforcement agency. The clerk shall not notify the respondent that the foreign protection order has been registered in New Mexico unless requested to do so by the protected individual.
C. A registered foreign protection order that is inaccurate or is not currently in effect shall be corrected or removed from the tribunal's records in accordance with New Mexico law.
D. A foreign protection order registered under the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act may be entered in any state or federal registry of protection orders in accordance with applicable law.
E. A fee shall not be charged for the registration of a foreign protection order.
Section 6. [NEW MATERIAL] 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 regarding the registration of, filing of a petition for or issuance of a protection order, restraining order or injunction, whether the filing or issuance occurred in New Mexico or any other state, if such publication would be likely to publicly reveal the identity or location of the party protected under such an order. A state agency, court or political subdivision may share court-generated and law enforcement-generated information contained in secure, governmental registries for protection order enforcement purposes.
Section 7. [NEW MATERIAL] IMMUNITY.--A New Mexico state or local agency, a law enforcement officer, a prosecuting attorney, a clerk of a court or any state or local governmental official acting in an official capacity is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
Section 8. [NEW MATERIAL] OTHER REMEDIES.--A protected individual who pursues remedies under the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act is not precluded from pursuing other legal or equitable remedies against the respondent.
Section 9. [NEW MATERIAL] UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In applying and construing the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact that act.
Section 10. [NEW MATERIAL] TRANSITIONAL PROVISION.--The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act applies to protection orders issued before July 1, 2009 and to continuing actions for enforcement of foreign protection orders commenced before July 1, 2009. A request for enforcement of a foreign protection order made on or after July 1, 2009 for violations of a foreign protection order occurring before July 1, 2009 is governed by the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
Section 11. 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.
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 party was entitled to such an order.
F.] E. 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.] F. 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.] G. 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.] H. 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 12. SEVERABILITY.--If any part or application of the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
Section 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
- 12 -