4-965

[Standard simplified order of protection, Family Violence

Protection Act, Sections 40-13-1 to 40-13-8 NMSA 1978.]

STATE OF NEW MEXICO

COUNTY OF _______________

___________________ JUDICIAL DISTRICT

                                                                                                            No. ____________

_____________________________, Petitioner

v.

_____________________________, Respondent

ORDER OF PROTECTION¹

[ ] MUTUAL² [ ] NON-MUTUAL

This order is an order of protection under 18 U.S.C. Section 922, 18 U.S.C. Section 2265 and Section 40-13-6(D) NMSA 1978. This order shall be accorded full faith and credit by the courts of every state and Indian Tribe and shall be enforced as if it were the order of such other State or Tribe.

THIS MATTER came before the court on the ____ day of ___________, ______ through a hearing on the [ ] petitioner's [ ] respondent's request for an order prohibiting domestic abuse.

The court, having determined that it has legal jurisdiction over the parties and the subject matter, FINDS, CONCLUDES AND ORDERS:

(check only applicable paragraphs)

1.         NOTICE AND APPEARANCES

            [ ]        Petitioner was present.

            [ ]        Petitioner was represented by counsel.

            [ ]        Respondent was present.

            [ ]        Respondent was represented by counsel.

            [ ]        Respondent was properly served with a copy of the petition, temporary order of protection prohibiting domestic abuse and order to appear.

            [ ]        Respondent was properly served with a copy of the petition and order to appear.

[ ]Respondent received actual notice of the hearing and had an opportunity to participate in the hearing.³

            [ ]        Petitioner was properly served with a copy of the counter-petition and Order to Appear.⁴

            [ ]        Petitioner was properly served with a copy of the temporary order and Order to Appear.

            [ ]        Petitioner received actual notice of the hearing and had an opportunity to participate in the hearing.3

2.         CONSEQUENCES OF ENTRY OF ORDER OF PROTECTION

Violation of this order by the [ ] respondent [ ] petitioner can have serious consequences, including:

            A.        If you violate the terms of this order, you may be charged with a misdemeanor, which is punishable by imprisonment of up to 364 days and a fine of up to $1,000. You may also be found in contempt of court.

            B.        If you are the spouse of the other party, an individual who lives with or has lived with the other party, or if you and the other party have had a child together, federal law prohibits you from possessing or transporting firearms or ammunition while this order is in effect. If you have a firearm or ammunition, you should immediately dispose of the firearm or ammunition. Violation of this law is a federal crime punishable by imprisonment for up to 10 years and a fine of up to $250,000.

            C.        If you are not a citizen of the United States, entry of this order may have a negative effect on your application for residency or citizenship.

3.         FINDING OF DOMESTIC ABUSE

An act of domestic abuse was committed by [ ] respondent [ ] petitioner that necessitates an order of protection.

4.         DOMESTIC ABUSE PROHIBITED

            [ ]        Respondent [ ] Petitioner shall not abuse the other party or members of the other party's household. "Abuse" means any incident by one party against the other party or another household member resulting in (1) physical harm; (2) severe emotional distress; (3) bodily injury or assault; (4) a threat by petitioner or respondent causing imminent fear of bodily injury to the other party or any household member; (5) criminal trespass; (6) criminal damage to property; (7) repeatedly driving by petitioner's or respondent's or a household member's residence or work place; (8) telephone harassment; (9) stalking; (10) harassment; or (11) harm or threatened harm to children in any manner set forth above.

            [ ]        Respondent [ ] Petitioner shall not ask or cause other persons to abuse the other party or any other household members.

5.         CONTACT PROHIBITIONS

            [ ]        Respondent [ ] Petitioner shall stay _________ yards away from the other party, the other party's home and any workplace at all times, unless at a public place, where the [ ] respondent [ ] petitioner shall remain __________ yards away from the other party except as specifically permitted by this order.

            [ ]        Respondent [ ] Petitioner shall not telephone, talk to, visit or contact the other party in any way except as follows:

                        [ ]        The parties may contact each other by telephone regarding medical emergencies of minor children;

                        Other  ____________________________________________________

____________________________________________________.

                        [ ]        The parties may attend joint counseling sessions at the counselor's discretion.

(Unless the court has sealed petitioner's or respondent's address, include address of residence and employment for [petitioner)] the appropriate party or parties.)

Respondent's addresses

            ____________________________    (home address)

            ____________________________    (work address)

            ____________________________    (city)

            ____________________________    (if applicable, tribe or pueblo)

             ____________________________    (state and zip code)

Petitioner's addresses

            ____________________________    (home address)

            ____________________________    (work address)

            ____________________________    (city)

            ____________________________    (if applicable, tribe or pueblo)

             ____________________________    (state and zip code)

6. COUNSELING

            [ ]        Respondent shall attend counseling at ______________________, contacting that office within five (5) days. The respondent shall participate in, attend and complete counseling as recommended by the named agency.

            [ ]        Petitioner shall attend counseling at ______________________, contacting that office within five (5) days. The petitioner shall participate in, attend and complete counseling as recommended by the named agency.

            [ ]        Respondent shall report to _________________, for a [ ] drug [and] [ ] alcohol screen by ______________, ______ (date) with the results returned to this court.

            [ ]        Petitioner shall report to _________________, for a [ ] drug [and] [ ] alcohol screen by ______________, ______ (date) with the results returned to this court.

            [ ]        Other counseling requirements: ________________________________

___________________________________________________________.

7.         CUSTODY

            [ ]        The court's orders regarding the minor child(ren) are addressed in the Custody, Support and Division of Property Attachment of this Order of Protection.⁵

8.         PROVISIONS RELATING TO SUPPORT

            [ ]        The court's orders regarding support issues for the parties are found in the Custody, Support and Division of Property Attachment of this Order of Protection.

9.         PROPERTY, DEBTS AND PAYMENTS OF MONEY

            [ ]        The court's orders regarding property, debts and payment of money are found in the Custody, Support and Division of Property Attachment⁵ of this Order of Protection.

10.       PARTIES SHALL NOT CAUSE VIOLATION

While this order of protection is in effect, petitioner should refrain from any act that would cause the respondent to violate this order. This provision is not intended to and does not create a mutual order of protections.

11.       ADDITIONAL ORDERS

[ ] Review hearing. The parties are ordered to appear for a review hearing on the ____ day of _______________, ______, at _______ (a.m.) (p.m).

Any party ordered to attend counseling shall bring proof of counseling to the review hearing.

IT IS FURTHER ORDERED⁶: _____________________________________

_______________________________________________________________.

12.       EFFECTIVE DATE OF ORDER; EXTENSION; MODIFICATION

This order is effective upon filing with the clerk of the court.

This order [with the exception of the orders in the Custody, Support and Division of Property Attachment⁵] shall continue until ___________________ (date), or until modified or rescinded by the court.

13.       NOTICE TO LAW ENFORCEMENT AGENCIES

ANY LAW ENFORCEMENT OFFICER SHALL USE ANY LAWFUL MEANS TO ENFORCE THIS ORDER.

            [ ]        Respondent [ ] Petitioner is ordered to surrender all keys to the residence to law enforcement officers.

            [ ]        Law enforcement officers or ______________________ shall be present during any property exchange.

            [ ]        This order supersedes prior orders in _____________ County, State of ____________, Cause No. _____________________ to the extent that there are contradictory provisions.

14.       NOTICE TO PARTIES

This order does not serve as a divorce and does not permanently resolve child custody or support issues.

15.       RECOMMENDATIONS

I have:

            [ ]        reviewed the petition for order of protection;

            [ ]        reviewed the counter-petition for order of protection;

            [ ]        conducted hearings on the merits of the petition;

            [ ]        after notice and hearing as indicated in this order I prepared this order as my recommendation to the district court judge regarding disposition of requests for order of protection.

_____________________________________

Signed

_____________________________________

                                                            Title

Court's telephone number: ________________

SO ORDERED:

____________________________                _____________________________

District Judge                                     Date

[ ]        A copy of this order was [ ] hand delivered [ ] faxed [ ] mailed to

[ ] respondent [ ] respondent's counsel on __________________ (date)⁷.

[ ]        A copy of this order was [ ] hand delivered [ ] faxed [ ] mailed to

[ ] petitioner [ ] petitioner's counsel on __________________ (date).

_____________________________________

Signed

_____________________________________

                                                            Title

USE NOTES

1.         These use notes shall not be included in any Order of Protection issued by the court.

2.         Mutual orders of protection are binding on the petitioner as well as the respondent and are entitled to full faith and credit when certain procedural requirements are met. Because the mutual order of protection will only issue when a petition and counter-petition (or reversed-caption petition) are filed and the court finds that both petitioner and respondent committed acts of abuse, a mutual order will be entitled to full faith and credit pursuant to 18 U.S.C. Section 2265(c) and Section 40-13-6(D) NMSA 1978.

3.         A mutual order may be entered only after a counter-petition has been filed and a hearing conducted of which petitioner received actual notice and at which petitioner had an opportunity to participate if 18 U.S.C. Section 922 is to apply to this order.

4.         This order may be entered only after a hearing at which respondent received actual notice and at which respondent had an opportunity to participate if 18 U.S.C. Section 922 is to apply to this order.

5.         See Form 4-967 for the Custody, Support and Division of Property Order attachment.

6.         If appropriate, an order providing for restitution may be included in this paragraph.

7.         Respondent or petitioner should be served at the time this order is issued, before leaving the courthouse. If a default order is issued, service upon the non-attending party shall be made by mail or by personal service. See Section 40-13-6(A) NMSA 1978.

[Amended September 17, 2007.]

COMMITTEE COMMENT

            The Family Violence Protection Act provides that "a peace officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order" of protection entered pursuant to the Act. Section 40-13-6(C) NMSA 1978.

            This statute would allow a warrantless misdemeanor arrest for conduct occurring outside the presence of the officer and would not require exigent circumstances in addition to probable cause. That a misdemeanor must occur in the presence of the arresting officer is a long standing common law requirement for a warrantless misdemeanor arrest. Eg. State v. Luna, 93 N.M. 773, 777, 606 P.2d 183, 187 (1980). The "exigent circumstances" requirement is mandated by the New Mexico Constitution. Campos v. State, 117 N.M. 155, 159, 870 P.2d 117, 121 (1994) ("[F]or a warrantless arrest to be reasonable it must be based upon both probable cause and sufficient exigent circumstances."). Absent the exigent circumstance that the misdemeanor is committed in the presence of the officer, id., ("If an officer observes the person arrested committing a felony, exigency will be presumed."), the New Mexico Constitution appears to bar blanket authority to make warrantless arrests for misdemeanors committed outside the presence of the officer.

            The legislature, of course, lacks power to provide by statute for an arrest procedure that violates the New Mexico Constitution. Campos v. State, 117 N.M. 155, 158, 870 P.2d 117, 120 (1994). To avoid having the Supreme Court give approval to a form containing language of questionable constitutional validity, the committee did not use the statutory language in the portion of the Final Order describing the power of a law enforcement officer to make a warrantless arrest for the misdemeanor crime (Section 40-13-6(D) NMSA 1978), of violating the Final Order of Protection. The committee substituted more general language, which does not prejudge the constitutional issue.

            The general provisions of the order of protection, including injunctive orders, "shall continue until modified or rescinded . . . or until the court approves a subsequent consent agreement. . . ." Section 40-13-6(B) NMSA 1978. In contrast, "[a]n order of protection . . . involving custody or support shall be effective for a fixed period of time not to exceed six months". Id. The custody or support "order may be extended for good cause upon motion . . . for an additional period of time not to exceed six months", id, unless "the order supersedes or alters prior orders of the court" pertaining to child custody or child support. See Section 40-13-5(C) NMSA 1978. In the latter situation, "the court may enter an initial order of protection, but the portion of the order dealing with child custody or child support will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action". Id.