HOUSE APPROPRIATIONS AND FINANCE COMMITTEE SUBSTITUTE FOR

HOUSE BILL 268

52nd legislature - STATE OF NEW MEXICO - first session, 2015

AN ACT

RELATING TO ORDERS OF PROTECTION; ALLOWING FOR THE USE OF EXCLUSION ZONES MONITORED BY A GLOBAL POSITIONING SATELLITE TRACKING SYSTEM UPON VIOLATION OF AN ORDER OF PROTECTION; CREATING THE DOMESTIC VIOLENCE SURVEILLANCE FUND; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of the Family Violence Protection Act is enacted to read:

     "[NEW MATERIAL] USE OF GLOBAL POSITIONING SATELLITE TRACKING SYSTEM UPON VIOLATION OF AN ORDER OF PROTECTION.--

          A. When a restrained party has been found to violate an order of protection and is not facing criminal charges for that violation, the court may, in addition to other remedies, establish geographic exclusion zones into which the restrained party cannot enter. The scope and area encompassed by the exclusion zone shall be determined by the court and may include:

                (1) the protected party's residence;

                (2) the protected party's place of employment;

                (3) the protected party's school, college or other place for education or training;

                (4) the protected party's child's or children's school, college, or other place for education or training, taking into account the underlying order of protection; and

                (5) other areas that the court determines are necessary for the safety of the protected party.

          B. If a restrained party enters an exclusion zone, the restrained party shall be considered to have violated the order of protection, unless the court finds that the entry into the exclusion zone was inadvertent or otherwise permissible.

          C. An order establishing an exclusion zone issued by the court involving custody or support shall be effective for a fixed period of time not to exceed six months. The order may be extended for good cause upon motion of the protected party for an additional period of time not to exceed six months.

          D. To enforce the exclusion zones, the court may order that the restrained party wear a global positioning satellite tracking device designed to transmit and record the restrained party's location data. If the restrained party enters a court-defined exclusion zone, the restrained party's location data shall be immediately transmitted to the protected party, law enforcement and the corrections department.

          E. The administrative office of the courts shall operate, or contract with a third party to operate, a global positioning satellite tracking system. The global positioning satellite tracking system used pursuant to this section shall use the best available global positioning satellite technology with the capability to:

                (1) immediately notify law enforcement or other monitors of any breach of the court-ordered exclusion zone boundaries;

                (2) notify the protected party in near-real time of any breach;

                (3) allow monitors to speak to the restrained party through a cell phone or similar technology implanted in the global positioning system device; and

                (4) activate a loud alarm to warn the protected party of the restrained party's presence in an exclusion zone."

     SECTION 2. A new section of the Family Violence Protection Act is enacted to read:

     "[NEW MATERIAL] DOMESTIC VIOLENCE SURVEILLANCE FUND-- COSTS--ADMINISTRATION--USE OF MONEY IN FUND.--

          A. The "domestic violence surveillance fund" is created in the state treasury to be administered by the administrative office of the courts.

          B. If the court orders the establishment of an exclusion zone monitored by a global positioning satellite tracking system, the court shall order the use of a global positioning satellite tracking system. The administrative office of the courts may collect costs for the use of the global positioning satellite tracking system on the restrained party, which shall be determined based on the restrained party's financial ability to pay. The costs shall be in addition to any other penalties that may be imposed for the violation of an order of protection. The money collected for costs shall be deposited in the domestic violence surveillance fund.  

          C. All balances in the domestic violence surveillance fund are appropriated to the administrative office of the courts for the primary purpose of employing personnel and purchasing equipment and services to establish and maintain the global positioning satellite tracking system established in Section 1 of this 2015 act.

          D. Payments from the domestic violence surveillance fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers issued and signed by the director of the administrative office of the courts.

          E. Any balance remaining in the domestic violence surveillance fund at the end of a fiscal year shall not revert to the general fund."

     SECTION 3. Section 40-13-5 NMSA 1978 (being Laws 1987, Chapter 286, Section 5, as amended) is amended to read:

     "40-13-5. ORDER OF PROTECTION--CONTENTS--REMEDIES--TITLE TO PROPERTY NOT AFFECTED--MUTUAL ORDER OF PROTECTION.--

          A. Upon finding that domestic abuse has occurred or upon stipulation of the parties, the court shall enter an order of protection ordering the restrained party to refrain from abusing the protected party or any other household member. The court shall specifically describe the acts the court has ordered the restrained party to do or refrain from doing. As a part of any order of protection, the court may:

                (1) grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;

                (2) award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;

                (3) order that the restrained party shall not initiate contact with the protected party;

                (4) restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party's property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;

                (5) order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;

                (6) order the restrained party to participate in, at the restrained party's expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and

                (7) order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies as provided by this section.

          B. The order of protection shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine, [or] imprisonment or [both] monitoring by a global positioning satellite tracking system, or any combination of these.

          C. If the order of protection supersedes or alters prior orders of the court pertaining to domestic matters between the parties, the order shall say so on its face. If an action relating to child custody or child support is pending or has concluded with entry of an order at the time the petition for an order of protection was filed, 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.

          D. A mutual order of protection shall be issued only in cases where both parties have petitioned the court and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

          E. No order issued under the Family Violence Protection Act shall affect title to any property or allow a party to transfer, conceal, encumber or otherwise dispose of another party's property or the joint or community property of the parties.

          F. Either party may request a review hearing to amend an order of protection. An order of protection involving child custody or support may be modified without proof of a substantial or material change of circumstances.

          G. An order of protection shall not be issued unless a petition or a counter petition has been filed."

     SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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