In New Mexico a Restraining Order of Protection falls under the Family Violence Protection Act. New Mexico Courts tend to lean on the side of caution and generally will grant a Temporary Restraining Order to fully uncover the facts at a hearing.
At the hearing, a Restraining Order of Protection is entered if the Hearing Officer finds that by a preponderance of the evidence an act of abuse occurred that places a person in an immediate threat of danger. Preponderance of the evidence basically means more likely than not, or 51%.
Preponderance of the evidence is the lowest legal burden. Additionally, the Hearing Officer decides what is “more likely than not.” This means that you are walking a tight rope at the hearing. There is not much room for error and minor changes to your approach can make a big difference towards the end result.
Here are tips for filing a Restraining Order of Protection in New Mexico. These tips can be the tipping point between a Restraining Order of Protection being entered – or dismissed.
I can relate to bad handwriting because I have horrible handwriting. Each year my handwriting seems to get worse. It’s lucky that you’re reading my typed words and not my hand-written words because sometimes I cannot read my own handwriting. It’s bad.
Don’t write like me when you’re completing the Petition for Order of Protection at the District Court in your county. Write clearly and legibly. Take your time. Take a breath. WRITE IN ALL CAPITAL LETTERS IF NEEDED – A LITTLE TRICK TO MAKE HANDWRITTING MORE LEGIBLE AS IT FORCES YOU TO SLOW DOWN AND THINK OUT EACH LETTER.
NM judges tend to lean on the side of caution when entering a Temporary Order of Protection. Enough concerning facts crammed into the Petition will likely lead to a Temporary Order being entered. With that being said, the Court cannot find the necessary probable cause that an act of abuse occurred, if your handwriting cannot be understood.
The information in your Petition is also used for the Respondent to file a Response. If you do not write legibly the Judge cannot understand your claims, and the Respondent cannot file the necessary response.
Moral of the tip – write clearly and legibly.
Assuming that your Petition is written legibly, and the assigned Judge finds the necessary probable cause that an act of abuse occurred, a hearing will be set. At this hearing the assigned Hearing Officer will hear both sides and decide if a “permanent” Restraining Order of Protection should be entered. The word “permanent” usually means six months to one year.
Review your Petition before the hearing. Be familiar with the claims that are stated in your Petition. Your Hearing Officer likely will be looking for consistency between your Petition and your testimony at the hearing.
Greater inconsistency between your Petition and testimony equals less credibility. In other words, you will not come across as credible (believable) if your testimony is wildly different than the claims in your Petition.
Read your Petition before the hearing and be consistent with your testimony.
The legal process can be stressful and nerve wracking. You’re probably thinking that it’s easy for an experienced trial attorney with over a decade of courtroom experience to tell you not to fear the process. I get it. This tip seems easier said than done.
You don’t need to fear the Hearing Officer and process. The Hearing Officer has been assigned to hear both sides explain their position. Coming across as extremely stressed or scared may cause your testimony to come across as unbelievable. The hesitation in your voice may be interpreted as untruthfulness.
Imagine that the Hearing Officer is your friend. Speak to the Hearing Officer like you are speaking to a friend that is on your side and looking for a reason to grant your request.
Has an act of abuse occurred such as violence, harassment, threats, stalking, damage to property? If so, immediately file the necessary Petition. Don’t wait. The clock is ticking, and your claims have less credibility the longer that you wait.
It can be difficult to convince a Hearing Officer that a Restraining Order must be entered to prevent future harm when weeks or months have passed since the alleged act of abuse occurred.
Immediately file a Petition after an act of abuse occurs.
Your Hearing Officer likely will not be concerned with claims of abuse that occurred several months ago. Your Hearing Officer will likely be thinking, “If the act of abuse was so serious several months ago – why didn’t you file a Petition when the act occurred?”
The more time that passes between the act of abuse and filing a Petition signals to the Hearing Officer that there is less danger of future harm.
Prior acts can and should be used to show escalating and increasingly unstable or abusive behavior that increases the likelihood of future harm. However, the key is escalating behavior. Acts that happened in isolation several months ago likely will not demonstrate the need for a Restraining Order of Protection to prevent an immediate danger of future harm.
At times the parties to a Restraining Order will reconcile and the Order is no longer necessary. It is always best to ensure that the Restraining Order of Protection is dismissed before contact resumes.
Failing to dismiss the Restraining Order of Protection could result in your arrest and criminal charges for Violating an Order of Protection. You are subject to arrest if the police are called and informed about the valid Restraining Order. You don’t want to be placed under arrest for violating a Restraining Order of Protection. Ensure that the Order of Protection has been properly dismissed before resuming contact.
Watch this video for more information on filing a restraining order in New Mexico.
Matthew Sanchez has the seasoned and hard fought experience to handle your Order of Protection in New Mexico. Sanchez has Order of Protection cases all across New Mexico, including Rio Rancho, Santa Fe, Los Lunas, Belen, Grants, and Estancia. You need an attorney that understands the essential divorce and custody rules in New Mexico. You need to call (505) SANCHEZ.
Tips for Filing a Restraining Order of Protection in New Mexico
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