Are you wondering if you can get a restraining order of protection based on emotional abuse?
In New Mexico, a restraining order of protection can be granted based on severe emotional distress. Protective orders often play a prominent role during divorce or custody disputes. For several reasons, a person may need a restraining order for protection.
Restraining order violations are treated harshly. A first offense is a misdemeanor that carries the potential for up to one year in jail. Moreover, a second or additional offense can result in felony charges that carry 18 months in prison and/or a $5,000 fine.
In other words, violating a restraining order carries serious consequences.
While active, protective orders also prevent abusers from carrying or possessing a firearm. Finally, protective orders can impact security clearances, leases, or employment opportunities.
Let’s examine examples of emotional abuse that can lead to a restraining order of protection being entered.
OUTRAGEOUS INSULTS
Most breakups and divorces entail a certain degree of hostility. At times, this hostility can turn into name-calling or finger-pointing about the breakup. In most situations, mild insults likely will not result in a finding of several emotional distress.
With that said, the likelihood of a restraining order being entered increases as insults become more outrageous.
For example, mildly insulting someone about a breakup probably won’t be considered severe emotional distress. On the other hand, wildly insulting someone’s medical condition might be considered severe emotional abuse.
Additional, outrages insults may include:
- Racial attacks;
- Abusive gender statements; and
- Attacks against sexual orientation.
A good rule of thumb is to never send a text or email that you would be embarrassed to show your sweet grandma. The more likely that your grandma would be offended by a text/email – the more likely that the insult will be considered to have caused “severe emotional distress.”
TAUNTS AND THREATS
Extreme taunts or insults may rise to the level of severe emotional abuse. Once again, taunting one’s race, gender, or sexual orientation may be considered severe emotional abuse.
Similarly, extreme threats can lead to a protective order being entered. These threats may be directed at third parties – for the sake of causing distress. The more outlandish the threat – the more likely that a restraining order of protection will be entered.
SEVERE BULLYING — RESTRAINING ORDER OF PROTECTION AND EMOTIONAL ABUSE
Severe bullying can lead to a restraining order being entered. No one likes a bully – Hearing Officers included. The bullying may come in the form of insults, threats, or taunts.
On one end, threatening to open a divorce or custody case likely won’t be considered severe emotional abuse. On the other hand, repeatedly texting, calling, or showing up at one’s house could be considered severe emotional abuse.
THREATS OF SELF-HARM OR HARM TO OTHERS
Severe emotional distress isn’t limited to threats of harming a victim. Instead, threats of self-harm are routinely found to cause a victim to suffer severe emotional distress.
Additionally, threating to harm oneself demonstrates dangerous instability. In turn, the assigned Hearing Officer will find this instability highly concerning.
Do you want to avoid a protective order from being entered? If so, then never send messages alluding or threatening self-harm.
COMBINATION OF FACTORS — RESTRAINING ORDER OF PROTECTION AND EMOTIONAL ABUSE
Any factor above could rise to the level of severe emotional abuse, depending on the severity. Additionally, the likelihood of severe emotional abuse being found increases with each factor that is raised.
For instance, a mild claim of insults probably won’t be considered severe emotional abuse. However, mild insults, added with taunts/threats, and coupled with bullying may be considered abusive.
Each factor that is added increases the likelihood that a restraining order of protection will be entered.
HEARING OFFICERS DECIDE “SEVERE EMOTIONAL DISTRESS”
It is important to understand the order of protection process, to better understand when abusive actions are considered severe emotional abuse.
The process begins by filing a petition/request for restraining order of protection. A temporary restraining order (TRO) is granted when the petition/request demonstrates sufficient facts that an act of abuse occurred.
The TRO includes notice about a upcoming Hearing to determine if a permanent order of protection will be entered. This Hearing usually takes place within ten days. At this Hearing, an assigned Hearing Officer usually determines if an act of abuse occurred.
The Hearing Officer’s decision is guided by evidence. This evidence includes: (1) Each party’s testimony, (2) Witness testimony, (3) Exhibits, or (4) Any other facts that demonstrate abuse.
PREPONDERANCE OF THE EVIDENCE – MORE LIKELY THAN NOT
The Hearing Officer decision is based on a preponderance of the evidence. In other words, the Hearing Officer enters a protective order when:
- Based on the evidence;
- It is more likely that not that an act of abuse occurred; and
- The abuse demonstrates an immediate threat of future harm.
Preponderance of the evidence is the lowest legal burden/standard. As mentioned, this standard means “more likely than not.” Ultimately, the Hearing Officer decides what is “more likely than not.” Most importantly, it is extremely difficult to successfully appeal/overturn the Hearing Officer’s decision. In other words, Hearing Officers have MASSIVE power to decide when and if a protective order is entered.
HEARING OFFICERS ARE HUMAN
Hearing Officers are human. Moreover, humans have unique preferences, perspectives, and opinions. Your Hearing Officer may be:
- Male/female;
- A former victim’s advocate;
- Divorced or recently separated;
- Have a history of suffering abuse from men/women;
- Have unique legal experiences and lean towards victims;
- May find something about your appearance or testimony concerning; or
- For personal reasons, may be offended by your insults/threats/bullying.
In the end, your Hearing Officer has HUGE power to decide if the facts demonstrate severe emotional abuse.
Are you considering sending an insulting/threatening text to your ex? If so, your unique Hearing Officer may be personally offended by your actions. In turn, a protective order may be entered based on severe emotional abuse.
Moral of the story: proceed with caution when making offensive statements to your ex. Your actions may have long term, serious consequences.
RESTRAINING ORDER OF PROTECTION ATTORNEY/LAWYER IN NEW MEXICO
Do you have questions about protective orders and emotional abuse? If so, Matthew Legan Sanchez has handled restraining orders for over a decade. During this time, Sanchez has handled domestic violence and restraining order of protections all across New Mexico, including Raton, Estancia, Santa Fe, Los Lunas/Belen, Rio Rancho, and Albuquerque. Call (505) SANCHEZ today.
