Judicial Nature of Domestic Violence Special Commissioner (DVSC)
The DVSC is not a Judge, but rather an attorney with whom the Court contracts to assist the District Court Judges. The DVCS makes recommendations to the District Court Judges on the appropriate action to take in domestic violence cases filed under the Family Violence Protection Act. Those recommendations may include issuing a Temporary Order of Protection or an Order of Protection for a longer duration, and recommending sanctions for Order of Protection violations.
Jurisdiction
In order of the DVSC to recommend an Order of Protection to the District Court Judge, the alleged domestic abuse must have occurred or have been received (such as threatening telephone call, text message, or email) in the State of New Mexico.
Judicial Role
Pursuant to the Family Violence Protection Act, the DVSC reviews every Petition for Temporary Order of Protection from Domestic Abuse to determine if the Court should grant an immediate Temporary Order of Protection. The purpose of the Temporary Order of Protection is to protect alleged victims of domestic violence before the Court can fully hear the case. The Temporary Order of Protection is normally issued by the Court within one (1) business day of the alleged victim filing the Petition for Order of Protection from Domestic Abuse (slightly longer for weekends/holidays).
If a Temporary Order of Protection is issued by the Court, the matter will be set for a hearing to determine if the Court should grant a longer protective order. That hearing requires personal Service of Process (Notice) on the Respondent (the person alleged to have committed the act of domestic abuse.
The DVSC may also recommend to the District Court Judge that no Temporary Order of Protection be issued because the case does not meet the necessary criteria under law. If the Court declines to grant a Temporary Order of Protection, the Order of Dismissal will also be sent to the Petitioner within approximately one (1) business day of the filing of the Petition for Order of Protection from Domestic Abuse.
Limitations on Domestic Violence Special Commissioner (DVSC)
The DVSC has no authority to grant divorces or to make permanent rulings on child custody, child visitation, child support, or division of property such as homes, vehicles, and furniture. The issues are heard by the District Court Judge assigned if the parties have filed a Domestic Matter (DM) case, such as a Petition for Dissolution of Marriage, Paternity case, or Child Support case. These issues are not determined permanently in domestic violence cases.
The DVSC does not have authority to order that a party be incarcerated.
The DVSC cannot require anyone who is not named in the caption of the Domestic Violence case to comply with any portion of the Order of Protection (such as children, siblings, parents of the named parties, etc.).
Service of Process Information
The Respondent must be personally served with a copy of the Petition for Order of Protection from Domestic Abuse, the Temporary Order of Protection and Order to Appear, and any Orders Rescheduling Hearing and Extension of Temporary Restraining Orders that have been issued in the case (if applicable). The proof of service is usually an Affidavit of Service or a Return of Service completed by a law enforcement officer or a private Process Server stating where and when service occurred, what documents were served, and whom was served. The Affidavit of Service/Return of Service also states the contact information of the party who served the documents on the Respondent (in case the Process Server needs to testify in Court). The proof of service must be filed with the Court prior to the hearing so that the Court is aware that the Respondent received Notice of the proceedings.
If a Respondent has not been served with the Petition for Order of Protection from Domestic Abuse, the Temporary Order of Protection and Order to Appear, and any Orders Rescheduling Hearing and Extension of Temporary Restraining Orders that have been issued in the case (if applicable), it is not possible to go forward with a hearing for a longer term Order of Protection until the Respondent is properly, personally served.
Excluding Petitioner’s Address as a Safety Precaution
When a Petition believes they must hide from the Respondent in order to remain safe prior to the hearing, the Petitioner may file a “Request for Order to Omit Petitioner’s Address and Telephone Number from Petition, to Place References to Petitioner’s Address under Seal, and for Providing Alternative Means of Service to Petitioner” form. These requests are usually submitted at the time of the filing of the original Petition for Order of Protection from Domestic Abuse. The DVSC will make a recommendation to the Judge on whether or not to seal the address information of the Petitioner.
Hearings
Hearings for Orders of Protection take place in front of the DVSC. These hearings are civil rather than criminal proceedings. The Petitioner or the Respondent or both may represent themselves (called “pro se”) or may be represented by an attorney at the hearing. The Court will not provide an attorney for either party.
Hearings are audio recorded by a Court Monitor. All discussion by the parties with the DVSC which involves the facts or legal issues of the case must be “on the record” (recorded). Parties can obtain a recording of a hearing by filing a written request with the Clerk’s office. There is a fee for the recording. Recordings are usually available for pick-up within one (1)-week of the writing request being filed.
The hearings are open to the public. In cases where a minor may be testifying, the minor’s guardian or Guardian ad Litem may request that the hearing be held toward the end of the docket so as to have fewer people in the Courtroom.
Testimony from the parties can be used in other hearings, such as criminal proceedings, involving the same parties. Some Respondents choose to enter into Stipulated Orders of Protection because those have no findings of domestic abuse and do not require any testimony by the Respondent.
Interpreters for Hearings
Interpreters are made available for Domestic Violence hearings upon request by a party or their attorney in either the Petition for Order of Protection from Domestic Abuse, the Response to Petition for Order of Protection, or by filing a separate Request for Interpreter (Form 4-115) and the requesting party stating specifically what language they need interpretation services in. Interpreters will be available to interpret for the parties and witnesses during the hearing. Interpreters are not required or expected to assist observers in the gallery-watching proceedings.
Minors (children) in the Courtroom
Parties are discouraged from bringing any children to Court hearings. It may be necessary for a minor to attend the hearing to testify under oath if the minor was the alleged victim of the domestic abuse and is the only eyewitness to the alleged abuse. For a variety of reasons, parents/guardians may want to consider other remedies than, or in addition to, Orders of Protection when young children are the alleged victims. Testifying against an adult, especially a parent, can be extremely traumatic for minors. To avoid having minors testify in Court, it is prudent for parents/guardians to seek legal advice from an attorney or agency, such as the District Attorney’s Office or Children, Youth, and Families Department, before filing a Petition for Order of Protection from Domestic Abuse.
Orders of Protection
There are two (2) types of Orders of Protection that can result from the hearing: (1) Order of Protection; and (2) Stipulated Order of Protection. Both types of Orders of Protection contain the same restrictions on contact between the parties. Usually, that means no contact whatsoever – though there may be some exceptions, such as to accommodate visitation by children of the parties with each parent. Both types of Orders of Protection result in the same penalties for violating the Orders of Protection. Both types of Orders of Protection can include provisions for custody and visitation of the parties’ children, child support, and exchange of personal property.
However, there are very important differences between the two (2) types of Orders of Protection. A Stipulated Order of Protection is agreed to by both parties and contains no finding of domestic abuse against the Restrained Party. The Stipulated Order of Protection generally remains in effect for two (2) years, although, the parties can agree to a longer or shorter period of protection. Because the parties agree to enter into a Stipulated Order of Protection, it is not necessary to put on testimony or other evidence about whether there was an act of domestic abuse committed by the Restrained Party.
An Order of Protection may be extended beyond its original expiration date by a party files a written request on an Application to Extend Order of Protection and asks for the extension in writing before the original Order of Protection expires. The DVSC will have a hearing on whether or not the Order of Protection should be extended beyond its original termination date before the termination date is extended by the Court.
Orders of Protection when the Parties Disagree
If there is no agreement between the parties to enter into a Stipulated Order of Protection and if the Petitioner still seeks an Order of Protection, the DVSC will proceed to hear evidence presented by both parties about why an Order of Protection should or should not be recommended to the District Court Judge. The evidence usually consists of sworn testimony of the parties. The parties may also put on the testimony of other witnesses to any domestic violence alleged in the original Petition for Order of Protection from Domestic Abuse (testimony by persons under the age of eighteen [18] is strongly discouraged). If the DVSC finds that domestic abuse occurred as defined by New Mexico law, the DVSC will recommend the filing of an Order of Protection. The Order of Protection issued after a hearing will contain a finding that the Restrained Party committed an act of domestic abuse. This Order of Protection generally remains in effect for two (2) years; however, depending on the egregiousness of the underlying circumstances presented on a case-by-case basis, may be issued for a period of time up to fourteen (14) years. This Order of Protection may also contain recommendations by the DVSC for the Restrained Party to attend drug counseling, alcohol counseling, anger management counseling, or a Batterer’s Intervention Program.
Further, the Order of Protection may be extended beyond its original expiration date by a party files a written request on an Application to Extend Order of Protection and asks for the extension in writing before the original Order of Protection expires. The DVSC will have a hearing on whether or not the Order of Protection should be extended beyond its original termination date before the termination date is extended by the Court.
How a Recommendation from the Domestic Violence Special Commissioner (DVSC) Becomes an Enforceable Order of Protection
The Orders of Protection recommended by the DVSC must be reviewed and approved by the District Court Judge. That generally occurs the same day as the hearing. If approved by the District Court Judge, the Order of Protection is filed with the Clerk of the District Court and copies are delivered to the parties and to the law enforcement NCIC and NCIS registries.
Violations of Orders of Protection
A Protected Party who feels in immediate danger due to an alleged violation of an Order of Protection by the Restrained Party can and should immediately call 911 or notify local law enforcement of the alleged violation.
Once an Order of Protection has been entered, whether it is Stipulated or not, if either party feels that the other party has violated the Order of Protection, then the party who feels that a violation has occurred can file an Affidavit of Violation of Restraining Order” form alleging the violation. The matter will then be set for hearing in front of the DVSC. The person accused of violating the Order of Protection must be personally served with a copy of the Affidavit of Violation of Restraining Order and the Order to Appear and Show Cause that indicated the hearing date, time, and location. If, after the hearing, the DVSC finds that a violation of the Order of Protection occurred, then the DVSC may recommend to the District Court Judge appropriate sanctions against the violating party, which may include, but is not limited to, a recommendation of community service, counseling, or up to one hundred seventy-nine (179) days incarceration at the Doña Ana County Detention Center.
Enforcement of New Mexico Orders of Protection
Once an Order of Protection has been signed by the District Court Judge and filed with the District Court Clerk’s Office, then the Order of Protection is enforceable anywhere in the United States without first being registered anywhere else. Likewise, law enforcement officers in New Mexico can usually enforce protective order from another state or territory of the United States (including the District of Columbia and Puerto Rico).
All domestic violence Order of Protection, whether Stipulated or not, are registered with the NCIC database and with Doña Ana Regional Dispatch. This allows law enforcement officers responding to a domestic violence call to know whether or not a protective order is in effect at the time.
If a party feels that his or her immediate safety, or that of a household member, is in imminent danger, then that party can call 911 or law enforcement to deal with the situation appropriately. Such remedy may include arresting a Restrained Party for violation of the Order of Protection. It is extremely helpful to law enforcement if the party calling for assistance has the Order of Protection immediately accessible. For this reason a protected party may want to keep an extra copy of his/her Order of Protection in his/her home, workplace, vehicle, and with a close neighbor or relative to be able to have easy access to show to law enforcement if necessary.
Expiration of Orders of Protection
Most Orders of Protection contain an expiration date. The expiration date can be extended beyond its original expiration date by a party files a written request on an Application to Extend Order of Protection and asks for the extension in writing before the original Order of Protection expires. The DVSC will have a hearing on whether or not the Order of Protection should be extended beyond its original termination date before the termination date is extended by the Court.
The expiration date of the Order of Protection and any Attachments regarding child custody, child support, or property division will not ordinarily be the same date.
Some Orders of Protection contain no expiration date. Unless otherwise specified in the text of the Order. If there is no expiration date, then the Order of Protection is commonly understood to run indefinitely (forever).
Timelines and Deadlines
Although there is not a fixed legal timeframe for filing a Petition for Order of Protection from Domestic Abuse, it generally should be filed as soon after the alleged abuse occurs as safely possible. The immediacy of the Temporary Order of Protection is to ensure PROTECTION rather than punishment. Filing the Petition for Order of Protection from Domestic Abuse quickly after the alleged abuse occurs helps to avoid any appearance that the claim is stale or being made for reasons of punishment or retaliation.
DVSC Contact Information
Location
Third Judicial District Court
201 W. Picacho Ave.
Las Cruces, NM 88005
Phone: 575-528-8200, Press Option 2 for the Clerk’s Office.
Email for Electronic Filing Submissions and Evidence Submissions: lcrd-dvfiling@nmcourts.gov
Legal Advice
Like the District Court Judges, the DVSC is not permitted to give legal advice to parties. The DVSC may answer questions of a general nature during the course of a hearing. The DVSC is not permitted to discuss the case with either party at any time other than during the parties’ hearing. The Domestic Relations Division Court Clerks may also be able to answer general procedural questions about domestic violence, but are also prohibited by law from dispensing legal advice.
Victim’s Advocates
The Las Cruces Police Department, Doña Ana County Sheriff’s Office, District Attorney’s Office, and the domestic violence and rape shelters have Victim’s Advocates. These Victim’s Advocates can assist parties in completing forms and learning what to expect at Court hearings.
Forms
The packets to file Petitions for Orders of Protection from Domestic Abuse in domestic violence cases are available from the Domestic Division District Court Clerks. Printable versions of all domestic violence forms can be found by clicking on SELF HELP FORMS under the SELF-HELP tab of the Third Judicial District Court’s website. Then click on the DOMESTIC VIOLENCE folder.
Petitions for Order of Protection from Domestic Abuse alleging domestic abuse should clearly state the date, location, and exact nature of each alleged incident of abuse. The names, addresses, and dates of birth should be completely filled in for each party to the case, as well as for any mutual children of the Petitioner and the Respondent. There is no filing fee to file either a Petition for Order of Protection from Domestic Abuse or an Affidavit of Violation of Restraining Order form in a domestic violence case.
Family Violence Protection Act
See New Mexico Statutes Annotated 1978, Sections 40-13-1 through 40-13-19, or see below for the definitions of “domestic abuse” and household member”.
General Definitions of Domestic Violence:
- Physical Harm
- Severe emotional distress
- Bodily injury or assault
- Threat causing imminent fear of bodily injury or assault
- Criminal trespass
- Criminal damage to property
- Repeatedly driving by a residence or workplace
- Telephone harassment
- Harassment
- Strangulation
- Suffocation
- Harm or threatened harm to children in any manner set forth above
- Stalking by someone other than a household member
- Sexual assault by someone other than a household member
Offensive, hurtful language (such as swearing, name-calling, profanity, or criticizing another person’s personality, lifestyle, or parenting methods) is generally NOT DOMESTIC VIOLENCE unless it contains one of the above-listed items. The same is true of threatening to seek custody of the parties’ child(ren) – that should be handled in Domestic Relations (DM) Court. See Section 40-13-2 NMSA 1978 for complete definitions of what is covered by the Family Violence Protection Act.
General Definition of a “Household Member”: Under the Family Violence Protection Act, Section 40-13-2(F) NMSA 1978 (2019) “household member” means ONLY a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship (defined as an intimate or dating relationship ONLY by Section 40-13-2(A) NMSA 1978). Cohabitation is not necessary.
Courthouse Protocol and Security
All persons entering the Third Judicial District Courthouse are subject to security screenings. No weapons of any kind (including, but not limited to, penknives on keychains) are permitted in the building. Cellular phones may be permitted with the prior permission from the Court only; however, must remain off or set to vibrate at all times. Cellular phones ringing in Courtrooms may be seized by security personnel, and may not be returned immediately. Purses, handbags, backpacks, and other carrying cases are not allowed in the Courthouse without prior approval of the Court.
Parties are expected to dress appropriately in Court. Short shorts, tank tops, ball caps, and sunglasses should not be worn in the Courtroom. Parties should refrain from chewing gum, eating, and drinking while their cases are being litigated. Use of tobacco products is prohibited.