How To Get A Restraining Order In New Mexico

According to NMSA 1978, § 40-13-2, a restraining order, which is called an "order of protection" in New Mexico, is a civil court injunction for the protection of a victim of domestic violence, harassment, or threats of harm. These legal order is designed to limit or prohibit contact between individuals in situations involving abuse or intimidation and are issued by the state's district courts under specific legal standards as stated in New Mexico law.

The process, eligibility requirements, and the different types of restraining orders are governed by New Mexico's Family Violence Protection Act (NMSA 1978, §§ 40-13-1 through 40-13-12) and other related statutes concerning harassment and stalking. Once a restraining order is granted, it is typically entered into New Mexico civil court records, making it a part of the public judicial system and accessible through official court avenues except otherwise declared by law.

Types Of Restraining Orders in New Mexico

There are numerous types of orders of protection under New Mexico law, with each one tailored to a specific harm or threat. Below is a list of some common types:

• Domestic Violence Order of Protection

This is issued under the Family Violence Protection Act, and it protects individuals from abuse by a current or former intimate partner, family member, or household member. This order can limit or entirely prohibit contact, restrict firearms possession, and grant temporary custody

• Emergency Order of Protection (Ex Parte Order)

The emergency order of protection is typically granted without any prior notice to the respondent when there is an immediate threat of harm. This is usually requested by law enforcement and remains in effect until a proper hearing is held.

Long-Term Order of Protection (Post-Hearing)
The Long-Term Order of Protection is issued after a formal hearing where both parties present evidence and remains in effect for up to six months or more, depending on the court ruling.

• Stalking or Harassment Protective Orders

In cases that do not involve any form of domestic relationship, victims of harassment or stalking can seek an order of protection under NMSA § 30-3A-3 (Stalking) or § 30-3A-2 (Harassment) through related civil court processes.
Breaking any provision of an order of protection is classified as a misdemeanor under NMSA 1978, § 40-13-6(E) and punishable by up to 364 days in jail, a jail fine of up to $1000, and other requirements such as mandatory counselling and restitution.

• A second violation becomes a fourth-degree felony punishable with a mandatory 72-hour jail term, with a potential of up to 18 months and a fine of up to $5,000.
• Any subsequent violation can be charged as a third-degree felony with up to three years in prison and a fine of $5,000.

Are Restraining Orders Public Record In New Mexico?

Yes. Orders of Protection in New Mexico are typically part of public court records and therefore available to public disclosure. Once an order of protection has been filed and granted by a court, it becomes part of the case records managed by the New Mexico district courts. Below are some reasons an order of protection may be exempt from public disclosure:

• If the case involves a minor
• Presence of confidential details such as addresses, phones, and other sensitive personal details
• If an order is sealed by a judge
• Protective orders from family court may be sealed in some counties, particularly orders involving child custody and domestic violence

How To Lookup Restraining Orders In New Mexico

There are numerous avenues through which interested parties can access orders of protection in New Mexico. Below are some:

• In-person visit to the District Court Clerk's Office, where the order was issued
• Remote search through the New Mexico Case Lookup tool, where interested parties can search by name or case number. Nonetheless, orders of protection are no longer accessible due to policy changes implemented in 2008.
• Expanded online access can typically be available for registered users such as attorneys, the press, law enforcement, and self-represented litigants through the re: Search®NM or the former SOPA system, under a tiered access system.
• The parties involved (petitioner and respondent) and the serving agencies.

Can You Lookup A Restraining Order Online?

No. Orders or Protection are not viewable online in New Mexico. This is in accordance with the policy of July 2008, the New Mexico Supreme Court has restricted online access to Family Violence Protection Act cases, including restraining orders. This means these orders are not accessible via any remote tool to the public, including government and third-party searchable databases.

Additionally, in New Mexico, there is no statewide public database that grants people the opportunity to search for an existing order of protection either by name or case number.

Instead, an order of protection is typically shared with law enforcement through the New Mexico Law Enforcement Telecommunications System (NMLETS). Courts in New Mexico are required to transmit the details of an order of protection to law enforcement, which makes them available to police agencies within the state. It is worth noting that NMLETS is only available to law enforcement and not accessible to the public, and even the parties are required to request confirmation through a law enforcement agency and not directly.

Members of the public are required to visit the district court clerk's office in person to access these orders. Parties to the case may also be able to obtain copies of the order, as well as the serving agency.

How To File A Restraining Order In New Mexico

Interested and eligible individuals can file a petition for an order of protection under the Family Violence Protection Act by following these steps in New Mexico:

Step 1: Determine Eligibility & Complete Required Forms

The interested individual should begin the process by first confirming that their situation qualifies under New Mexico's domestic abuse laws, either threats, physical abuse, harassment, or stalking by a household member. Upon confirmation, fill out a Petition for Order of Protection form, which is typically available at a local district court or remotely via the New Mexico Supreme Court's forms page.

Step 2: File the Petition at the District Court

Petitioners can file completed forms at the district court clerk's office in the county where they or the respondent is a resident. Individuals who are in immediate danger are at liberty to request a temporary ex parte order for emergency protection. The temporary order can be issued without the other party being present.

Step 3: Serve the Respondent

Upon filing, the court will provide instructions for serving the respondent. It is worth noting that service is carried out by either law enforcement or an authorized third party. Upon service, a return of service form is required to be filed with the court.

Step 4: Attend the Court Hearing

Typically, in New Mexico, a hearing is scheduled ten to 20 days after filing, and both parties may present testimony, witnesses, or evidence. Upon finding sufficient probable cause, the judge issues a long-term order of protection of up to six months or longer if extended.

Can You File A Restraining Order For No Reason In New Mexico?

No. In New Mexico, a statutory proof of abuse or threat is required by the court to issue an order of protection. In accordance with NMSA § 40-13-3, the petitioner is required to present specific allegations of domestic abuse, such as physical harm, threats, or severe emotional distress. Petitions that lack credible evidence or do not meet the legal criteria are typically denied.

What Proof Do You Need For A Restraining Order In New Mexico?

Petitioners are required to provide credible evidence of abuse, threats, or harassment to obtain an order of protection in New Mexico. The requirements for an order of protection are, however, dependent on the type of order being sought. Even though the legal standard for orders of protection is much lower than in criminal cases, the courts still require reasonable proof that abuse occurred, particularly for a long-term order of protection. As grounded in NMSA § 40-13-3(B), the court requires reasonable grounds to believe that an act of domestic abuse has occurred before issuing an order of protection.

Proof Required for Temporary Orders (Ex Parte)

To issue a temporary order of protection, New Mexico courts primarily rely on sworn statements in the petition. The court can typically issue an ex parte order without the respondent being present if the allegations suggest an immediate danger of harassment or domestic abuse. Even though supporting documentation can prove helpful, they are not strictly required for a temporary order.

Proof Required for a Final Order of Protection

To issue a final or extended order of protection, the court holds a full hearing where the burden shifts to the petitioner, who is required to prove the allegation to the judge's satisfaction. This process is called a civil standard of proof (preponderance of evidence), not "beyond a reasonable doubt". During a hearing, both the petitioner and respondent are at liberty to present documents, exhibits, and witness testimony. Common forms of evidence usually submitted include the following:

• Sworn testimony from the petitioner or witnesses
• Photograph of injuries or property damage
• Threats in the form of texts, voicemails, or social media
• Police reports or incident numbers
• Call logs or documentation of harassment or stalking
• Medical or mental health records, if applicable

Even though an attorney is typically not required during hearings for an order of protection, representation or assistance from a legal aid organization can help ensure strong evidence is presented clearly and within set legal standards.

How Long Does It Take To Get A Restraining Order In New Mexico?

The duration it takes to process a restraining order in New Mexico is dependent on the type of protection being requested and the urgency of the situation. Regardless, the process typically moves fast under the Family Violence Protection Act:

• Emergency Orders (Issued by Law Enforcement): As earlier stated, if there is a threat of immediate danger, a police officer can contact a judge over the phone to request an emergency order of protection. According to NMSA § 40-13-3.2 an emergency order of protection can be issued at any time of the day or night and is typically valid for 72 hours or until the next court session.
• Temporary Orders (Ex Parte): Based on the sworn allegations presented by a petitioner, a judge is required to immediately decide whether or not to issue a temporary order. The the petition presents probable cause, then the court issues the order the same day.
• Final Order of Protection (After Hearing): For a final order of protection, the court typically schedules a hearing within 10 to 20 days of the petition, and if the judge grants the petition after the hearing, a long-term protection order is issued that day.

How Long Does A Restraining Order Last In New Mexico?

The duration of an order of protection in New Mexico varies by type as follows:

• An emergency order of protection is typically valid for 72 hours or until the next court session where the court hears the petition.
• Temporary Orders (Ex Parte) remain in effect until the scheduled hearing date, usually within 10 to 20 days.
• According to NMSA § 40-13-5(A), a final (long-term) order of protection can last up to about six months, and the court is at liberty to either extend or renew it. Based on the provision of NMSA § 40-13-6 and upon good request and good cause, the court can extend the initial term or reissue the order if violated.

How Much Does A Restraining Order Cost in New Mexico?

Filing for an order of protection in New Mexico is mostly free in domestic violence-related cases. According to the Family Violence Protection Act, no fee is required when the petition involves acts of domestic abuse, stalking, threats, or harassment by a household member. This is in place to encourage individuals seeking protection to come. This is to ensure that victims are not discouraged from seeking protection due to financial concerns.

• Orders of protection filed under NMSA § 40-13, there is no cost to file a petition, request a temporary order, or appear at the hearing.
• Law enforcement agencies charge no fees to serve an order of protection in New Mexico.

Additionally, if a petitioner is unable to pay for related legal expenses, such as legal representation or notarization of documents, they may request a fee waiver from a domestic violence legal aid organization.

Can You Cancel A Restraining Order In New Mexico?

Yes. Nonetheless, only the court has the authority to cancel or modify an order of protection in New Mexico. Once issued, an order of protection stays legally enforceable until expiration, formally modified, or rescinded by the court. Neither party to the order may privately alter the order's terms.

To cancel an order, either the petitioner or respondent may file a motion to dismiss or amend the order of protection, which is then submitted to the district court that originally issued it. The court, on its own part, will:

• Review the application to amend, vacate, or dissolve
• Schedule a hearing during which parties may present reasons for requesting or opposing the change
• Decide whether a good cause exists to terminate or modify the order under NMSA § 40-13-6.

If the court modifies or vacates the order, it will issue a new ruling and forward the updated status to law enforcement, ensuring that police agencies across New Mexico have the correct information in the New Mexico Law Enforcement Telecommunications System (NMLETS). This ensures that officers in the field are working with the most current protection order status.