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 Judges. The DVSC makes recommendations to the District Judges on the appropriate action to take in domestic violence cases. Those recommendations may include issuing a Temporary Order of Protection or an Order of Protection of a longer duration. The DVSC can also recommend sanctions for violating an Order of Protection.
In order for the DVSC to recommend an Order of Protection to the District Judge, the alleged domestic abuse must have occurred or been received (such as a threatening telephone call, text message, or email) in the State of New Mexico.
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 theTemporary Order of Protection is to protect alleged victims of domestic violence before the Court can fully hear the case. Temporary Orders of Protection are normally issued by the Court within one day of the victim filing the Petition (slightly longer for weekends/holidays).
If a Temporary Order of Protection is issued by the Court, the matter will be set for 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 domestic abuse). The DVSC may also recommend to the Judge that no Temporary Order of Protection be issued because the case doesn't meet the necessary criteria under the law. If the Court declines to grant a Temporary Order of Protection, that information will also be sent to the Petitioner within approximately one day of filing the Petition for Order of Protection from Domestic Abuse.
Limitations on Domestic Violence Special Commissioner
The DVSC has no authority to grant divorces or make permanent rulings on child custody, child visitation, child support, or division of property such as homes, vehicles, furniture. These issues are heard by the District Judge assigned if the parties have filed a Domestic Matter (DM), such as a Petition for Dissolution of Marriage, or in a 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 DV case to comply with any portion of the protective order (such as children, siblings, parents of the named parties).
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 Hearing Notice. The proof of service is usually an Affidavit completed by a Sheriff's Deputy or private Process Server stating where and when service occurred, and whom was served. The Affidavit 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). This proof of service is filed with the Court. If a Respondent hasn't been served with the Petition for Order of Protection from Domestic Abuse, the Temporary Order of Protection, and the Hearing Notice, it is not possible to go forward with a hearing for a longer term protective order.
Excluding Petitioner's Address as Safety Precaution
When a Petitioner believes she or he 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. The full name of this pleading is“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 on Petitioner.” These requests are usually submitted at the time of filing the original Petition for Temporary Order of Protection. The DVSC will make a recommendation to the Judge on whether or not to seal the address information of the Petitioner.
Hearings for protective orders 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.
Hearings are audio recorded by a Court Monitor. Parties can obtain a recording of the hearing by filing a written request with the Clerk's office. There is a fee for the recordings. Recordings are usually available for pick-up within one week of the request being filed.
All discussion by the parties with the DVSC which involve the facts or legal issues of the case must be “on the record” (recorded).
Hearings in domestic violence cases are usually scheduled on Tuesday and Friday mornings.
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 towards the end of the docket so as to have fewer people in the Courtroom.
Testimony from parties at hearings can be used in other hearings, such as criminal proceedings involving the same parties. Some Respondents choose to enterStipulated Orders of Protection because those have no finding of abuse and don't require any testimony by the Respondent.
Interpreters for Hearings
An English/Spanish interpreter is always available for domestic violence hearings. Interpreters for other languages, including American Sign Language, can be scheduled if requested in the Petition or by a Respondent's written (filed) response. Interpreters are available to interpret for parties and witnesses during the hearing. The interpreters are not required or expected to assist observers in the gallery watching the 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 victim of the domestic abuse and is the only eyewitness to the abuse. For a variety of reasons, parents/guardians may want to consider other remedies than, or in addition to, protective orders 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 Office or Children, Youth and Families Department before filing a Petition for Order of Protection from Domestic Abuse.
There are two types of Protective Orders which 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 exceptions, such as to accommodate visitation by children of the parties with each parent. Both types of Protective Orders result in the same penalties for violating the Order 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. But there are important differences between the two types of orders. A Stipulated Order of Protection is agreed to by both parties and contains no finding of domestic abuse against the Respondent. This Order generally remains in effect for seven (7) years, although the parties can agree to a shorter period of protection. This Order can also be extended beyond seven years if either party requests in writing that the Court do so prior to the order expiring. Because the parties agree to this Order, it is not necessary to put on testimony or other evidence about whether there was domestic abuse.
Protective Orders when the Parties Disagree
If there is no agreement between the parties to enter a Stipulated Order of Protection and if the Petitioner still seeks a protective order, the DVSC will proceed to hear evidence by both parties about why an Order of Protection should or should not be recommended to the District 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 (testimony by persons under the age of 18 is strongly discouraged). If the DVSC finds that domestic abuse occurred as defined by New Mexico law, the DVS will recommend the filing of an Order of Protection. The Order of Protection contains a finding that Respondent committed an act of domestic abuse. This Order of Protectiongenerally remains in effect for fourteen (14) years although it can be extended if a party files a written request to do so prior to the expiration date. This Order of Protection may contain recommendations by the DVSC for the Restrained Party to attend drug counseling, alcohol counseling, or anger management counseling.
How a Recommendation from the Domestic Violence Special Commissioner becomes an enforceable Protective Order
The Orders of Protection recommended by the DVSC must be approved by a District Judge. That generally occurs the same day as the hearing. If approved by the District Judge, the Order of Protection is filed with the Clerk of the Court and copies are sent to the parties and to law enforcement registries.
Violations of Protective Orders
Once an Order of Protection has been entered, whether Stipulated or not, if either party feels the other party violated the Order of Protection, the party who feels a violation occurred can file an Affidavit of Violation of Protective Order 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 and an Order to Show Cause with the hearing date, time, place. A protected party who feels in immediate danger due to a violation of the Order by the Restrained Party can and should immediately call 911 or notify local law enforcement of the violation.
If, after the hearing, the DVSC finds that a violation of the Order of Protectionoccurred, the DVSC may recommend to the District Judge appropriate sanctions against the violating party, which may include a recommendation of up to 180 days in the Doña Ana County Detention Center.
Enforcement of New Mexico Protective Orders
Once an Order of Protection has been signed by the District Judge and filed with the Court Clerk's Office, the Order is enforceable anywhere in the United States without first being registered anywhere else. Likewise, law enforcement officers in New Mexico can usually enforce a protective order from another state or territory of the United States (including the District of Columbia and Puerto Rico).
All domestic violence orders, 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, 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 a copy of his/her Order of Protectionin his/her home, workplace, vehicle, and with a close neighbor or relative.
Expiration of Orders of Protection
Most Orders of Protection contain an expiration date. The expiration date can be extended if the written request to extend the expiration date is filed prior to the expiration date (the issue would be set for hearing in front of the DVSC).
The expiration date on the Order of Protection and any Attachments regarding child custody, visitation, or support 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, the Order of Protection is commonly understood to run indefinitely.
Time Lines and Deadlines
Although there is not a fixed legal time frame for filing a Petition for Order of Protection from Domestic Abuse, it should generally be filed as soon after the alleged abuse occurs as is safely possible. The immediacy of the Temporary Order of Protection is to ensure PROTECTION rather than punishment. Filing the Petition for Order from Domestic Abuse quickly after the abuse avoids any appearance that the claim is stale or being made for reasons of punishment or retaliation.