Rule text
________________ Judicial District ________________ County, New Mexico Order of Protection Case No. ______________________ [ ] Amended Order
PROTECTED PARTY ([ ] PETITIONER [ ] RESPONDENT) PROTECTED PARTY IDENTIFIERS
First Middle Last Date of Birth of Protected Party And/or on behalf of minor family member(s): (list name and Other Protected Persons/DOB DOB) _________________________________________________ ________________________________________________ _________________________________________________ ________________________________________________ V. RESTRAINED PARTY RESTRAINED PARTY IDENTIFIERS SEX RACE DOB HT WT
First Middle Last EYES HAIR SOCIAL SECURITY # Not used in New Mexico Relationship to Protected Party: DRIVERS LICENSE # STATE EXP DATE _________________ __________________________________________ Restrained Party's Address __________________________________________ Distinguishing Features _____________________________ __________________________________________ ________________________________________________
CAUTION: [ ] Weapon Involved [ ] Credible Threat. Firearm Delivery Ordered. THE COURT HEREBY FINDS: That it has jurisdiction over the parties and subject matter, and the Restrained Party has been provided with reasonable notice and opportunity to be heard. [] Additional findings of this order follow on succeeding pages. THE COURT HEREBY ORDERS: [] That the above named Restrained Party be restrained from committing further acts of abuse or threats of abuse. [] That the above named Restrained Party be restrained from any contact with the Protected Party. [] Additional terms of this order are as set forth on succeeding pages. The terms of this order shall be effective until , . WARNINGS TO THE RESTRAINED PARTY: This order shall be enforced, even without registration, by the courts of any state, the District of Columbia, and any U.S. Territory, and may be enforced by Tribal Lands under 18 U.S.C. Section 2265. Crossing state, territorial, or tribal boundaries to violate this order may result in federal imprisonment under 18 U.S.C. Section 2262. As a result of this order, it is unlawful for you to possess or purchase ammunition or a firearm, including a rifle, pistol, or revolver, under 18 U.S.C. Section 922(g)(8) and NMSA 1978, Section 30-7-16, and may be unlawful under 18 U.S.C. Section 921(a)(32). If you have any questions whether federal law makes it illegal for you to possess or purchase a firearm, you should consult an attorney. Only the court can change this order. Page 1 of ____ Judge's signature on last page
[Family Violence Protection Act, NMSA 1978, Sections 40-13-1 to 40-13-8.]
ADDITIONAL PAGES1 OF ORDER OF PROTECTION
THIS MATTER came before the court on the ________ day of ______________, __________ through a hearing on the [ ] the petitioner's [ ] the respondent's request for an order prohibiting domestic abuse.
The court further FINDS, CONCLUDES AND ORDERS:
(check only applicable paragraphs)
1. FINDING OF CREDIBLE THREAT
[] The restrained party presents a credible threat to the physical safety of the protected party or a member of the protected party's household. The court's order regarding relinquishment of firearms is addressed in paragraph five (5) of this order of protection.
[] The restrained party presents a credible threat to the physical safety of the protected party, who is a household member.
[] The restrained party shall, within forty-eight (48) hours, deliver any firearm in the restrained party's possession, care, custody, or control to a law enforcement agency, law enforcement officer, or federal firearms licensee while the order of protection is in effect, and shall refrain from purchasing, receiving, or possessing, or attempting to purchase, receive, or possess, any firearm while the order of protection is in place.
[] The restrained party is responsible for ensuring that the firearm delivery receipt is filed in this case within seventy-two (72) hours of entry of this order.
2. NOTICE, APPEARANCES AND STATUS
[] The petitioner was present.
[] The petitioner was represented by counsel. [] The respondent was present.
[] The respondent was represented by counsel.
[] The respondent was properly served with a copy of the petition, temporary order of protection prohibiting domestic abuse and order to appear.2
[] The respondent was properly served with a copy of the petition and order to appear.2
[] The respondent received actual notice of the hearing and had an opportunity to participate in the hearing.2
[] The petitioner was properly served with a copy of the counter-petition and order to appear.2
[] The petitioner was properly served with a copy of the temporary order of protection prohibiting domestic abuse and order to appear.
[] The petitioner received actual notice of the hearing and had an opportunity to participate in the hearing.2
[] The relationship of the parties is that of an "intimate partner" as defined in 18 U.S.C. Section 921 (a)(32). (See 3 below.)3
3. CONSEQUENCES OF ENTRY OF ORDER OF PROTECTION
Violation of this order by the restrained party 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 three hundred sixty-four (364) days and a fine of up to one thousand dollars ($1,000.00), or both. You may be found in contempt of court.
B. If you receive, transport, or possess a firearm or destructive device while the order of protection is in effect, you may be charged with a misdemeanor, which is punishable by imprisonment for up to three hundred and sixty-four (364) days and a fine of up to one thousand dollars ($1,000.00).
C. If you are the spouse or former spouse of the other party, an individual who cohabitates with or has cohabitated with the other party, or if you and the other party have had a child together, federal law also 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 ten (10) years and a fine of up to two hundred and fifty thousand dollars ($250,000.00).
D. If you are not a citizen of the United States, violation of this order will have a negative effect on your application for residency or citizenship.
4. FINDING OF DOMESTIC ABUSE
An act of domestic abuse was committed by [ ] the respondent [ ] the petitioner that necessitates an order of protection. [ ] The petitioner [ ] The respondent is the protected party under this order.
5. FINDING THAT THE RESTRAINED PARTY PRESENTS A CREDIBLE THREAT TO THE PROTECTED PARTY'S PHYSICAL SAFETY, ORDER
The restrained party presents a credible threat to the physical safety of the protected party, who is a household member.
The restrained party shall deliver any firearm in the restrained party's possession, care, custody, or control to a law enforcement agency, law enforcement officer, or federal firearms licensee while the order of protection is in effect, and shall refrain from purchasing, receiving, or possessing, or attempting to purchase, receive, or possess, any firearm while the order of protection is in effect.
6. DOMESTIC ABUSE PROHIBITED
The restrained party 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 the petitioner or the 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 the protected party'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.
The restrained party shall not ask or cause other persons to abuse the other party or any other household members.
7. CONTACT PROHIBITIONS
The restrained party shall stay one hundred (100) yards away from the other party, the other party's home, and any work place at all times, unless at a public place, where the restrained party shall remain twenty-five (25) yards away from the other party except as specifically permitted by this order. The restrained party 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;
[ ] The restrained party shall not post or cause another to post anything about the protected party on any form of social media, including, but not limited to, Facebook, Twitter, Instagram, or Snapchat. This prohibition includes posts about the protected party's family members, significant other, and children.
[ ] Other: _________________________________________________________ ____________________________________________________________________.
[ ] The parties may attend joint counseling sessions at the counselor's discretion.
(Unless the court has sealed the protected party's address, include it below.)
Protected Party
______________________________________________________________________
____________________________ _________________________ Home address City, State, Zip Code ____________________________ _________________________ Work Address City, State, Zip Code ____________________________ _________________________ Tribe/Pueblo (if applicable) State and Zip Code
8. COUNSELING
[ ] The restrained party shall attend counseling at ______________, contacting that office within five (5) days. The restrained party shall participate in, attend, and complete counseling as recommended by the named agency.
[ ] The protected party shall attend counseling at ______________, contacting that office within five (5) days. The protected party shall participate in, attend, and complete counseling as recommended by the named agency.
[ ] The restrained party shall report to __________________, for a [ ] drug [and] [ ] alcohol screen by ______________, __________ (date) with the results returned to this court. [ ] The protected party shall report to ______________, for a [ ] drug [and] [ ] alcohol screen by ______________, __________ (date) with the results returned to this court.
[ ] Other counseling requirements: _____________________________________ _____________________________________________________________________.
9. 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. 4
10. 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. 4
11. PROPERTY, DEBTS, AND PAYMENT OF MONEY
[] The court's orders regarding property, debts, and payment of money are found in the Custody, Support and Division of Property Attachment of this order of protection. 4
12. PARTIES SHALL NOT CAUSE VIOLATION
While this order of protection is in effect the protected party should refrain from any act that would cause the restrained party to violate this order. This provision is not intended to and does not create a mutual order of protection. Under NMSA 1978, Section 40-13-6 (D), only the restrained party can be arrested for violation of this order.
13. ADDITIONAL ORDERS
[] Review hearing. The parties are ordered to appear for a review hearing on the ________ day of ______________, __________, at ______________ (a.m.) (p.m.). Failure to appear may result in the issuance of a bench warrant for your arrest or dismissal of this order.
Any party ordered to attend counseling shall bring proof of counseling to the review hearing.
IT IS FURTHER ORDERED:5______________________________________________ _____________________________________________________________________.
14. NOTICE TO LAW ENFORCEMENT AGENCIES
ANY LAW ENFORCEMENT OFFICER SHALL USE ANY LAWFUL MEANS TO ENFORCE THIS ORDER. ____________________ (name) 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.
15. NOTICE TO PARTIES
This order does not serve as a divorce and does not permanently resolve child custody or support issues.
To make a request to extend this order, the protected party should return to the court with a copy of this order at least three (3) weeks before this order expires.
16. 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, prepared this order as my recommendation to the district court judge regarding disposition of the request for order of protection. If any party disagrees with the recommendations, that party may, but is not required to, file written objections and a request for hearing on those objections with the district court within fourteen (14) calendar days. A copy of those objections and a request for hearing must be served by mail on the other party.
_______________________________ Signed _______________________________ Title Court's telephone number: _________
The court has reviewed the recommendations and adopts them. This order remains in effect unless and until it is modified by a district court judge or it expires. If objections are filed, the court may conduct a hearing to resolve the objections. (See Rule 1- 053.1(H)(1)(a) NMRA.) SO ORDERED:
__________________________________ ________________________________ District Judge Date
[] A copy of this order was [ ] hand delivered [ ] faxed [ ] mailed to [ ] the respondent
[] the respondent's counsel on ______________ (date).6
[] A copy of this order was [ ] hand delivered [ ] faxed [ ] mailed to [ ] the petitioner
[] the petitioner's counsel on ______________ (date).
_________________________________ Signed
_________________________________ Title
USE NOTES
1. The first page of this order of protection shall be in the uniform format preceding the heading for additional pages of the order.
2. This order may be entered only after a hearing at which the respondent received actual notice and at which the respondent had an opportunity to participate if 18 U.S.C. Section 922 is to apply to this order.
3. The federal definition of "intimate partner" under the Gun Control Act, 18 U.S.C. Section 921(a)(32), is narrower than the state definition of "household member" under the Family Violence Protection Act, NMSA 1978, Section 40-13-2(E). Thus, while the parties subject to this order must be household members as a matter of state law, the court also must determine whether they are intimate partners and therefore subject to 18 U.S.C. Section 922(g)(8), as described in Paragraph 2, above.
4. See Form 4-967 NMRA for the Custody, Support and Division of Property Order attachment.
5. If appropriate, an order providing for restitution may be included in this paragraph.
6. The respondent or the petitioner should be served at the time this order is issued, before leaving the courthouse. If a default order is issued, service on the non-attending party shall be made by mail or by personal service. See NMSA 1978, Section 40-13- 6(A). [Approved, effective November 1, 1999 until July 1, 2001; approved, as amended, effective May 1, 2001; as amended by Supreme Court Order No. 07-8300-020, effective September 17, 2007; by Supreme Court Order No. 08-8300-040, effective December 15, 2008; as amended by Supreme Court Order No. 19-8300-009, effective for all orders issued on or after July 1, 2019; as amended by Supreme Court Order No. 19- 8300-015, effective for all cases pending or filed on or after December 31, 2019; as amended by Supreme Court Order No. 20-8300-010, effective for all cases pending or filed on or after December 31, 2020; as amended by Supreme Court Order No. S-1- RCR-2023-00010, effective for all cases pending or filed on or after December 31, 2025.]
Notes
Committee commentary. -- 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. NMSA 1978, Section 40-13-6(C).
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. E.g., State v. Luna, 1980-NMSC-009, ¶ 11, 93 N.M. 773, 606 P.2d 183, 187. The "exigent circumstances" requirement is mandated by the New Mexico Constitution. Campos v. State, 1994-NMSC-012, ¶ 1, 117 N.M. 155, 870 P.2d 117, 121 ("For 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, 1994-NMSC-012, ¶ 7. 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 (NMSA 1978, Section 40-13-6(D)), 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. . . ." NMSA 1978, Section 40-13-6(B). 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 NMSA 1978, Section 40-13-5(C). 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.
[As amended by Supreme Court Order No. 20-8300-010, effective for all cases pending or filed on or after December 31, 2020.]
ANNOTATIONS
The 2025 amendment, approved by Supreme Court Order No. S-1-RCR-2023-00010, effective December 31, 2025, enlarged the time within which to file written objections and a request for hearing on those objections; in Item 16, after "with the district court within" deleted "ten (10)" and added "fourteen (14) calendar".
The 2020 amendment, approved by Supreme Court Order No. 20-8300-010, effective December 31, 2020, added an additional provision in the order of protection form prohibiting the restrained party from posting or causing another to post anything on social media about the protected party, the protected party's family members or the protected party's significant other, made certain technical amendments, revised the Use Notes, and revised the committee commentary; in Section 7, after "The parties may contact each other by telephone regarding medical emergencies of minor children", added "The restrained party shall not post or cause another to post anything about the protected party on any form of social media, including, but not limited to, Facebook, Twitter, Instagram, or Snapchat. This prohibition includes posts about the protected party's family members, significant other, and children."; in Section 9, changed Use Note designation "3" to "4"; in Use Note 3, after "Paragraph", deleted "2(B)" and added "2"; and in the committee commentary, added vendor neutral citations for the cases cited.
The second 2019 amendment, approved by Supreme Court Order No. 19-8300-015, effective for all cases pending or filed on or after December 31, 2019, changed the potential punishment for violating the order of protection by receiving, transporting, or possessing a firearm or destructive device while the order of protection is in effect; and in Section 3, Paragraph B, after "punishable by imprisonment for up to", deleted "three (3) years" and added "three-hundred and sixty-four (364) days and a fine of up to onethousand dollars ($1,000.00)".
The first 2019 amendment, approved by Supreme Court Order No. 19-8300-009, effective July 1, 2019, revised the warnings to the restrained party, added optional findings regarding the credible threat of the restrained party, added a provision informing the restrained party of the prohibitions related to the possession of firearms, made technical and clarifying changes, and revised the Use Note; in the "Warnings To Restrained Party" section, after "18 U.S.C. Section 922(g)(8)", added "and NMSA 1978, Section 30-7-16, and may be unlawful under 18 U.S.C. Section 921(a)(32)"; added new Paragraph 1 and redesignated former Paragraphs 1 through 3 as Paragraphs 2 through 4, respectively; in Paragraph 2, after "See" deleted "2(B)" and added "3(B)"; in Paragraph 3, deleted "[ ] respondent [ ] petitioner" and added "restrained party", and added new Subparagraph B and redesignated the succeeding subparagraphs accordingly; added new Paragraph 5 and redesignated former Paragraphs 4 through 14 as Paragraphs 6 through 16, respectively; in Paragraphs 6 and 7, replaced each occurrence of "[ ] Respondent [ ] Petitioner" with "The restrained party"; and in Paragraph 6 after "repeatedly driving by", deleted "petitioner's or respondent's" and added "the protected party's"; in Paragraph 7, after "shall stay", added "100", and rewrote the provision related to the protected party's address; in Paragraph 8, replaced each occurrence of "Respondent" with "Restrained party", and replaced each occurrence of "Petitioner" with "Protected party"; and in the Use Note, added new Use Note 3 and redesignated the succeeding Use Notes accordingly.
The 2008 amendment, approved by Supreme Court Order No. 08-8300-040, effective December 15, 2008, changed the title from "Order of Protection [] Mutual []Non-Mutual" to "Additional Pages of Order of Protection"; deleted the former introductory paragraph which provided that the order was an order of protection under 18 U.S.C. §922, 18 U.S.C. §2265 and Section 40-13-6(D) NMSA 1978 and that the order shall be accorded full faith and credit and be enforced as if it were an order of the other state or Tribe; in the Findings section, deleted the provision that the court has legal jurisdiction over the parties and the subject matter; in Paragraph 1 added "And Status" to the title; in Paragraph 1, added the last item; in Subparagraph A of Paragraph 2, added "or both" at the end of the first sentence; in Subparagraph B of Paragraph 2, changed "spouse of the other party" to "spouse or former spouse of the other party", changed "lives" and "lived" to "cohabitates" and "cohabitated"; in Subparagraph C of Paragraph 2, changed "entry" to "violation"; in Paragraph 3, added the last sentence; in Paragraph 5, in the bold, italicized paragraph, changed "petitioner's or respondent's" to "the protected party's" and changed "address of residence and employment for the appropriate party or parties" to "it below"; changed "Respondent's addresses" to "Protected party's addresses", deleted the blanks for the Petitioner's addresses; in Paragraph 10, changed "petitioner" to "protected party" and "respondent" to "restrained party" and added the last sentence; in Paragraph 11, added the last sentence of the first paragraph; deleted former Paragraph 12 which provided for the effective date, extension and modification of the order; renumbered former Paragraphs 13 through 15 as Paragraphs 12 through 14; in Paragraph 13, added the last sentence; in Paragraph 14, added the last sentence of the last check item and added the last paragraph; in the Use Notes, in Paragraph 1, deleted the note which provided that the notes shall not be included in the order and added the current note; deleted former Paragraph 2 which provided that mutual orders of protection are binding on the petitioner and the respondent and are entitled to full faith and credit when certain procedural requirements are met and pursuant to 18 U.S.C. §2265(c) and Section 40-13-6(D) NMSA 1978; deleted former Paragraph 3 which provided that a mutual order may be entered only after a counter-petition has been filed and a hearing has been held; and renumbered former Paragraphs 5 through 7 as Paragraphs 3 through 5. The 2007 amendment, effective September 17, 2007, amended Paragraph 10 to change "shall refrain" to "should refrain"; added the last sentence providing Paragraph 13 does not create a mutual protection order; deleted Use Note 6 providing that a violation of the order may result in a finding of contempt of court; and renumbered the following paragraphs of the Use Notes.
The 2001 amendment, effective May 1, 2001, substituted "Mutual/Non Mutual" for "Against Respondent" in the title of the order and rewrote the order to reflect the fact that the order addresses the actions of both parties in the protection order.
Order of protection did not violate respondent's due process rights. -- Where respondent was found in criminal contempt for her violation of an order of protection, which expressly prohibited respondent from engaging in conduct that would cause petitioner to suffer severe emotional distress, and where respondent repeatedly posted on the internet photos of petitioner snorting prescription drugs, implying that petitioner had a substance abuse problem, accompanied by statements claiming that petitioner was a "junkie," a drug-addled imbecile," and a "drug-addicted hypocrite," respondent's due process rights were not violated, because the order provided respondent with sufficient notice that her online activity would constitute a violation. Best v. Marino, 2017-NMCA-073, cert. denied.
Order of protection's restriction of respondent's ability to access the Internet was unconstitutionally overbroad. -- Where the district court issued an order of protection based on respondent's sustained pattern of stalking and harassment of petitioner, the court's restriction of respondent's ability to access the internet was a clear prior restraint on respondent's first amendment rights and was not the least restrictive means by which to address the harm in this case, and therefore the district court's restriction was unconstitutionally overbroad and violated respondent's first amendment rights. Best v. Marino, 2017-NMCA-073, cert. denied.