46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO DOMESTIC VIOLENCE; ENACTING THE UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC-VIOLENCE PROTECTION ORDERS ACT; ESTABLISHING PROCEDURES FOR THE ENFORCEMENT OF ORDERS; AMENDING A SECTION OF THE FAMILY VIOLENCE PROTECTION ACT.

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

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 9 of this act may be cited as the "Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act:

A. "foreign protection order" means a protection order issued by a tribunal of another state;

B. "issuing state" means the state whose tribunal issues a protection order;

C. "mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent;

D. "protected individual" means an individual protected by a protection order;

E. "protection order" means an injunction or other order, issued by a tribunal under the domestic-violence, family-violence or anti-stalking laws of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with or physical proximity to another individual;

F. "respondent" means the individual against whom enforcement of a protection order is sought;

G. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders; and

H. "tribunal" means a court, agency or other entity authorized by law to issue or modify a protection order.

SECTION 3. "[NEW MATERIAL] JUDICIAL ENFORCEMENT OF ORDER.--

A. A person authorized by the law of this state to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in a tribunal of this state. The tribunal shall enforce the terms of the order, including terms that provide relief that a tribunal of this state would lack power to provide but for this section. The tribunal shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the tribunal shall follow the procedures of this state for the enforcement of protection orders.

B. A tribunal of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.

C. A tribunal of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation, if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state.

D. A foreign protection order is valid if it:

(1) identifies the protected individual and the respondent;

(2) is currently in effect;

(3) was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and

(4) was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an ex parte order, the respondent was given notice and had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the respondent's due process rights.

E. A foreign protection order valid on its face is prima facie evidence of its validity.

F. Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.

G. A tribunal of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:

(1) the respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and

(2) the tribunal of the issuing state made specific findings in favor of the respondent.

SECTION 4. [NEW MATERIAL] NON-JUDICIAL ENFORCEMENT OF ORDER.--

A. A law enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a tribunal of this state. Presentation of a protection order that identifies both the protected individual and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this section, the protection order may be inscribed on a tangible medium or may be stored in an electronic medium or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.

B. If a foreign protection order is not presented, a law enforcement officer of this state may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.

C. If a law enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.

D. Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act.

SECTION 5. [NEW MATERIAL] IMMUNITY.--The state or a local governmental agency, or a law enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with the provisions of the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act.

SECTION 6. [NEW MATERIAL] OTHER REMEDIES.--A protected individual who pursues remedies pursuant to the provisions of the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act is not precluded from pursuing other legal or equitable remedies against a respondent.

SECTION 7. UNIFORMITY OF APPLICATION AND CONSTRUCTION.--

In applying and construing the provisions of the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 8. [NEW MATERIAL] SEVERABILITY CLAUSE.--If any provision of the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of that act which can be given effect without the invalid provision or application, and to this end the provisions of the act are severable.

SECTION 9. [NEW MATERIAL] TRANSITIONAL PROVISION.--The Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act applies to protection orders issued before July 1, 2003 and to continuing actions for enforcement of foreign protection orders commenced before July 1, 2003. A request for enforcement of a foreign protection order made on or after July 1, 2003 for violation of a foreign protection order that occurred before July 1, 2003 is governed by the provisions of the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act.

Section 10. Section 40-13-6 NMSA 1978 (being Laws 1987, Chapter 286, Section 6, as amended) is amended to read:

"40-13-6. SERVICE OF ORDER--DURATION--PENALTY--REMEDIES NOT EXCLUSIVE.--

A. An order of protection granted under the Family Violence Protection Act shall be filed with the clerk of the court, and a copy shall be sent by the clerk to the local law enforcement agency. The order shall be personally served upon the respondent, unless he or his attorney was present at the time the order was issued. The order shall be filed and served without cost to the petitioner.

B. An order of protection granted 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 petitioner for an additional period of time not to exceed six months. Injunctive orders shall continue until modified or rescinded upon motion by either party or until the court approves a subsequent consent agreement entered into by the petitioner and the respondent.

C. 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 pursuant to this section.

[D. State courts shall give full faith and credit to tribal court orders of protection and orders of protection issued by courts of other states. A protection order issued by a state or tribal court against one who has petitioned, filed a complaint or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if:

(1) no cross or counter petition, complaint or other written pleading was filed seeking such a protection order; or

(2) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.

E.] D. A person convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.

[F.] E. In addition to any other punishment provided in the Family Violence Protection Act, the court shall order a person convicted to make full restitution to the party injured by the violation of an order of protection and order the person convicted to participate in and complete a program of professional counseling, at his own expense, if possible.

[G.] F. In addition to charging the person with violating an order of protection, a peace officer shall file all other possible criminal charges arising from an incident of domestic abuse when probable cause exists.

[H.] G. The remedies provided in the Family Violence Protection Act are in addition to any other civil or criminal remedy available to the petitioner."

SECTION 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.