44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO DOMESTIC ABUSE; PROVIDING FOR THE ISSUANCE OF EX PARTE EMERGENCY ORDERS OF PROTECTION; AMENDING AND ENACTING SECTIONS OF THE FAMILY VIOLENCE PROTECTION ACT.

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

Section 1. Section 40-13-1 NMSA 1978 (being Laws 1987, Chapter 286, Section 1) is amended to read:

"40-13-1. SHORT TITLE.--[This act] Chapter 40, Article 13 NMSA 1978 may be cited as the "Family Violence Protection Act"."

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

"[NEW MATERIAL] EX PARTE EMERGENCY ORDERS OF PROTECTION.--

A. The district court may issue an ex parte written emergency order of protection when a law enforcement officer or the officer's designee states to the court in person, by telephone or via facsimile upon a written statement made by a person petitioning for an emergency order of protection, and the court finds reasonable grounds to believe, that the petitioner is in immediate danger of domestic abuse following an incident of domestic abuse by a household member. The statement shall include the location and telephone number of the respondent, if known.

B. A law enforcement officer who receives an emergency order of protection, whether in writing, by telephone or by facsimile transmission, from the court shall:

(1) if necessary, pursuant to the judge's or judicial officer's oral approval, write and sign the order on an approved form;

(2) if possible, immediately serve a signed copy of the order on the respondent and complete the appropriate affidavit of service;

(3) immediately provide the petitioner with a signed copy of the order; and

(4) provide the original order to the court by the close of business on the next judicial day.

C. The court may grant the following relief in an emergency order for protection upon a probable cause finding that domestic abuse has occurred:

(1) enjoin the respondent from threatening to commit or committing acts of domestic abuse against the petitioner or any designated household members;

(2) enjoin the respondent from any contact with the petitioner, including harassing, telephoning, contacting or otherwise communicating with the petitioner;

(3) temporarily remove and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence;

(4) enjoin the respondent from contacting the petitioner or any household member at the residence, school and place of employment of the petitioner and any other specified place frequented by the petitioner and any designated household members;

(5) order temporary possession or use of the parties' automobile or other personal effects, as enumerated by the court, regardless of their ownership, and direct the appropriate law enforcement officer to accompany the petitioner at a specified time to safely obtain these items or to accompany and supervise the petitioner's or respondent's removal of personal belongings;

(6) grant temporary legal or physical custody of any minor child to the petitioner, if necessary; and

(7) order other relief as deemed necessary to protect and provide for the safety of the petitioner and any designated household members.

D. A district judge or a designated judicial officer with authority to issue an order for protection shall be available as determined by each judicial district to hear petitions for emergency orders of protection.

E. An emergency order of protection expires seventy-two hours after issuance or at the end of the next judicial day, whichever time is latest. The expiration date shall be clearly stated on the emergency order of protection.

F. A person may appeal the issuance of an emergency order of protection to the court that issued the order. An appeal may be heard as soon as the judicial day following the issuance of the order.

G. Upon a proper petition, a district court may issue a temporary order of protection that is based upon the same incident of domestic abuse that was alleged in an emergency order of protection.

H. Emergency orders of protection are enforceable in the same manner as other orders of protection that are issued pursuant to the provisions of the Family Violence Protection Act."

Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.