FAQs – Domestic Violence Restraining Orders

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When there is recent abusive behavior between a couple – whether physical violence or severe emotional or sexual abuse – you can obtain a restraining order against your spouse or partner under the Family Violence Protection Act.  NMSA §40-13-1 et seq.  It is not necessary to call the police to obtain a restraining order, but please call the police if you or your children are in immediate physical danger.  

What is a domestic violence (DV) restraining order?

Also called an “order of protection”, a domestic violence restraining order is done under the civil law, as opposed to criminal law.  Sometimes criminal charges are also filed against the abuser, usually called “battery against a household member”.  That means there are two cases involving the same events, one in family court and one in criminal court.  A DV Order means one person is ordered by the judge to stay away from, and not contact, the other person for a specific period of time.  If you violate the order, you can be arrested.

What is “domestic abuse”?

Domestic abuse does not just mean physically hurting another person   It includes specific kinds of behavior by one household member against another household member that consists of or results in physical harm, severe emotional distress, sexual assault, a threat causing imminent fear of physical harm, criminal trespass, criminal damage to property, repeatedly driving by a residence or workplace (stalking), harassment by telephone or other means, or harm or threatened harm to children.

Who is considered to be a “household member”?

You don’t have to be married or live together to be a household member.  The law defines “household member” as a spouse or former spouse; parent; present or former stepparent, present or former in-law, grandparent, grandparent-in-law; child, step-child or grandchild; co-parent of a child; person with whom you have had a continuing personal relationship; or any victim of stalking or sexual assault, regardless of family relationship.

Who is not considered to be a “household member”?

The following people do not meet the definition of household member – your former or current spouse seeking a restraining order against your former or current girlfriend / boyfriend; siblings (brothers and sisters, step- or half-brothers and sisters); aunts and uncles; nieces and nephew; cousins; sibling in-laws (current or past); step-grandparents and step-grandchildren; or any present or former in-law other than a parent-in-law or current grandparent-in-law.  If your connection to the abuser falls outside the “household” member category, you would have to pursue a restraining order under the normal rules and laws for any civil restraining order, which is different than a DV Order under the Family Violence Protection Act.

Who can obtain a DV restraining order?

A person who has been abused can ask for a DV restraining order against a current or former other household members (see above for who qualifies as a household member).    It’s not a free-for-all where anyone can get a DV Order against anyone else.  The incident of abuse needs to occur recently, usually within 30 days of filing the petition, because you are asking the judge to grant emergency relief.  If you and your spouse got into a physical fight six months or two years ago, you will probably not get a restraining order now because the emergency has passed.

Where do I get a DV restraining order?

You go to the state District Court in the county where you live to process the application for a DV Restraining Order.  

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