2.1 Introduction
In New Mexico, orders of protection are issued under the Family Violence Protection Act, §40-13-1. The Supreme Court has adopted official, uniform forms to be used for the process of applying for and issuing orders. Supreme Court Forms 4-961 et seq.

Orders of protection are recognized as a powerful tool to reduce violence against current or former intimates. They are particularly helpful when swiftly and effectively enforced. While orders of protection do not always stop the violence, in the majority of cases they have proved effective in reducing or eliminating further abuse.

The most effective strategies for ensuring the safety of the abused party and children include a comprehensive plan that limits the perpetrator's power and control over the victim. Orders of protection can address the perpetrator's access to the abused party, custody and visitation, economic support, restitution, and rehabilitation of the perpetrator. Thus, they can play a powerful role in preventing further domestic violence.

Studies show that victims of domestic violence are particularly vulnerable to reassault, and even homicide at the time they attempt to separate from the abuser. See State ex rel Schwartz v. Sanchez, 1997-NMSC-21, at ¶ 9, pp. 3 - 4; E. Stark, A. Flitcraft, D. Zuckerman, A. Grey, J. Robuson, & W. Frazier, Wife Abuse in the Medical Setting, Office of Domestic Violence, U.S. Department of Health and Human Services (Washington, D.C., 1980); P. A. Langan & C.A. Innes, Preventing Domestic Violence Against Women, Bureau of Justice Statistics Special Report (Washington, D.C., U.S. Department of Justice, 1986, p.1).

Many domestic violence homicides occur when the abused party is in the process of separating from the abuser. A common misconception regarding domestic violence is that the violence will stop once the abused party leaves the relationship, and therefore issuance of orders of protection after separation is unnecessary. Studies show that in fact a perpetrator often increases the violence after separation in an attempt to coerce the abused party to return, or in retaliation for the separation. According to the National Institute of Justice, 75% of the domestic assaults reported to law enforcement agencies occur when the abused party is already divorced or separated from the abuser. U.S. Department of Justice, Report on the Nation on Crime and Justice: The Data (Washington, D.C. Government Printing Office, 1983). For this reason, orders of protection can be particularly effective in preventing further violence after separation of the parties.

A study conducted by the National Institute of Justice in 1990 found:

With thousands of victims petitioning for protection orders, judges have a unique opportunity to intervene in domestic violence cases. For those victims who petition early, as violence begins to escalate, judges can structure needed protection before such crime can lead to serious injury or death.

Finn & Colson, Civil Protection Orders: Legislation, Current Court Practice and Enforcement, at p. 1, National Institute of Justice, March 1990, at p. 2. (Subsequently cited as N.I.J. C.P.O. Study).

2.2 Overview of Orders of Protection

2.2.1 Purpose
Orders of protection have emerged as an accessible and effective justice system response to family violence. National Council of Juvenile and Family Court Judges, Family Violence: Improving Court Practice, Reno, Nevada, 1990, at 22. (Subsequently cited as NCJFCJ). They can play a critical role as part of a comprehensive plan designed to protect victims from continuing violence in the home.

Civil protection orders offer judges a unique additional tool for responding to the special difficulties of domestic violence cases. When properly used and enforced, protection orders can help prevent specific behaviors such as harassment or threats which could lead to future violence. They also can help provide a safe location for the victim, if necessary, by barring or evicting an offender from the household, and establish safe conditions for any future interactions, for example, supervised child visitation.

N.I.J. C.P.O. Study at 1.

Orders of protection can play a powerful role in the court's ability to meet the following goals of court intervention in domestic violence cases:

• Stop the violence.
• Protect the abused party.
• Protect the children and other family members.
• Protect the general public.
• Hold the perpetrator accountable for the violent behavior and for stopping that behavior.
• Rehabilitate the perpetrator.
• Provide support and restitution for the abused party and the children.
• Convey to the public that domestic violence will not be tolerated.

2.2.2 Effectiveness
Civil orders of protection, when properly drafted and enforced, are effective in eliminating or reducing domestic abuse. N.I.J. C.P.O. Study at p. 1; Lerman, "A Model State Act: Remedies for Domestic Abuse," Harvard L Journal on Legislation, 1984, 21(1), p. 70, n.35; Lenore Walker, The Battered Woman, Harper & Row, 1979; Grau, Fagan & Wexler, "Restraining Orders for Battered Women: Issues of Access and Efficacy," Women and Politics, 1984, 4: pp. 13-28. Swift enforcement of protective orders is essential to their effectiveness. Research demonstrates that men stop battering women partners to the extent that they perceive that penalties for further violence will be both certain and severe. Carmody, D.C. & Williams, K.R., 1987, "Wife Assault and Perceptions of Sanctions." Violence and Victims, 2; Jaffe, P., Wolfe, D.W., Telford, A. & Austin, G., 1986, "The Impact of Police Charges in Incidents of Wife Abuse," Journal of Family Violence, 1, [1]; Hart, B. 1990, Violent No More: Intervention Against Wife Abuse in Ohio. Ohio Domestic Violence Network; Attorney General's Family Violence Task Force of Pennsylvania, Domestic Violence: A Model Protocol for Police Response, Harrisburg, PA: Office of the Attorney General, January, 1989. The utility of orders of protection often depends on whether they provide the requested relief in specific detail.

Judges stress that each type of relief provided must be fully explained in the order. Providing precise conditions of relief makes the offender aware of the specific behavior prohibited. A high degree of specificity also makes it easier for police officers and other judges to determine later whether the respondent has violated the order.

N.I.J. C.P.O. Study at 33.

2.2.3 Constitutionality
While New Mexico has not specifically addressed the constitutionality of statutes authorizing the issuance of domestic violence protection orders, the constitutionality of such statutes in general has been repeatedly upheld. See, e.g., Schramek v. Bohren, 429 N.W.2d 501 (Wisc. 1988) (spousal abuse statute is not unconstitutional since it does not restrict respondent's free speech rights or violate equal protection or due process); Marquette v. Marquette, 686 P.2d 990 (Ok. 1984) (ex parte order barring communication with wife and denying visitation does not violate due process where deprivation for short period of time and state has interest in protecting abuse victims); Sanders v. Shephard, 541 N.E.2d 1150 (Il. 1989) (ex parte protective orders do not violate due process); Boyle v. Boyle, 12 D & C 3d 767 (Pa. 1979) (valid exercise of police powers in a reasonable manner to abate a well recognized and widespread social problem); Cobb v. Cobb, 545 N.E.2d 1161 (Ma. 1989) (protective orders issued ex parte do not violate procedural due process or free speech where deprivation was only for short period of time and state had interest in securing abused party's immediate protection); In re Marriage of Hagaman, 462 N.E.2d 1276 (Il., 1984) (statute prohibiting "abuse" not unconstitutionally vague. Definition of abuse encompasses a broad variety of conduct. Civil standard for vagueness, not criminal, applies).

2.2.4 Independent Actions for Protection Orders
The vast majority of jurisdictions, including New Mexico, allow the filing of a civil protection order action independent of any other family or criminal law action. See §40-13-3. In a few states the protection order may be filed in a criminal case and in other states it may be filed as part of a pre-existing family action. New Mexico does not provide for issuance of orders of protection as such in criminal cases, but allows courts to include no contact provisions in criminal orders.

2.2.5 The Role of the Domestic Violence Commissioners
Effective July 1, 2005, the Family Violence Protection Act has been amended to modify and clarify Rule 1-053.1 of the Rules of Civil Procedure. S. 447, 47th Leg., Reg. Sess. (N.M. 2005). The new section authorizing appointment of domestic violence commissioners defines how domestic violence commissioners work within district courts.

Under this section, domestic violence special commissioners shall:

• Review petitions for orders of protection and motions to enforce, modify, or terminate orders of protection;
• If deemed necessary, interview petitioners. Any interviews shall be on the record;
• Conduct hearings on the merits of petitions for orders of protection and motions to enforce, modify, or terminate orders of protection; and
• Prepare recommendations to the district court regarding petitions for orders of protection and motions to enforce, modify, or terminate orders of protection.

The statute and the rule empower domestic violence commissioners to hear and review evidence and to make recommendations to the district judge, but do not allow commissioners to issue orders themselves. Rather, “[a]ll orders must be signed by a district court judge before the recommendations of a domestic violence special commissioner become effective.” S. 447, §2, 47th Leg., Reg. Sess. (N.M. 2005); see also Rule 1-053.1(C). The requirement of a judge’s signature is intended to protect the due process rights of the parties. As the Court of Appeals has emphasized, the judge’s signature is not ministerial: a judge must conduct some review before signing an order recommended by a special commissioner in order to satisfy the constitutional requirement of due process. Lujan v. Casados-Lujan, 2004-NMCA-36, 135 N.M. 285 (2003). Although the Court did not define the scope of the review necessary to satisfy the Constitution, it expressed “grave concern” over the allegation that judges automatically sign orders recommended by special commissioners. Id. at ¶19.

2.3 Family Violence Protection Act Provisions

2.3.1 Who May Petition for an Order of Protection
The Family Violence Protection Act authorizes a "victim of domestic abuse" to petition the court for an order of protection. §40-13-3(A). "Domestic abuse" is defined as a specified incident by a household member against another household member. §40-13-2(C); see §2.3.4 below. Therefore the victim of domestic abuse must be a "household member," defined in §40-13-2(D) as one of the following:

• Spouse
• Former spouse (regardless of the length of time that has elapsed since divorce or whether the spouses had children in common)
• Family member, including a:
  o Relative
  o Parent
  o Present or former stepparent
  o Present or former in-law
  o Child
  o Co-parent of a child
• Person with whom the victim has had a continuing personal relationship.

Cohabitation is not necessary for a person to be considered a household member. §40-13-2(D).

Note that because a child is considered to be a household member, a parent or legal guardian can petition for an order of protection on behalf of a child against an abusing household member.

An incompetent adult or a minor may bring an action by next friend or guardian ad litem. Rule 1-017. Unlike in some other states, however, an adult may not file on behalf of another adult absent such circumstances.

A law enforcement officer may assist the petitioner in obtaining an ex parte emergency order of protection under certain circumstances. Apart from those limited circumstances, the Act does not allow law enforcement officers to file on behalf of victims or potential victims.

2.3.2 Who May Be Subject to an Order of Protection
Again, because "domestic abuse" requires a particular action by a household member against another household member, §40-13-2(C), to be subject to an order of protection, the abuser must be one of the household members enumerated in §40-13-2(D):

• Spouse
• Former spouse (regardless of the length of time that has elapsed since divorce or whether the spouses had children in common)
• Family member, including a:
  o Relative
  o Parent
  o Present or former stepparent
  o Present or former in-law
  o Child
  o Co-parent of a child
• Person with whom the abuser has had a continuing personal relationship

A child can be the abusing household member and therefore an order of protection may be issued against a minor. Issuance of such an order raises two questions that have yet to be answered by case law or statute in New Mexico:

1. How is the order enforced?
2. Who is responsible for the child if he or she is restrained from living at the parents' home?

See generally Lucero v. Pino, 124 N.M. 28, 946 (Ct. App. 1997) (suggesting that order of protection issued against minor without guardian ad litem or counsel may be voidable).

2.3.3 Specific Persons Protected

Parents of a child in common
§40-13-2(A) affords protection to co-parents, defined as persons who have a child in common regardless of whether they have been married or lived together at any time.

Unmarried persons of different genders living as spouses
Persons living as spouses are entitled to protective orders as household members in New Mexico under the definition of household member in §40-13-2(D): "a person with whom the petitioner has had a continuing personal relationship." Cohabitation is not necessary to be deemed a household member.

Intimate partners of the same gender
Gay and lesbian partners are similarly covered by the protective order statute of New Mexico. §40-13-2(D) includes a person with whom the petitioner has had a continuing personal relationship, with or without cohabitation.

Dating relationships
New Mexico's statute provides protection to "intimate sexual partners," dating relationships and similar relationships. See §40-13-2(D).

Persons offering refuge
Although some states allow issuance of orders of protection on behalf of persons who offer an abused family member refuge, New Mexico's statute does not (unless they are otherwise household members).

Other household members
The statutory definition of "household member" in §40-13-2(D) is quite broad, using language that includes petitioner's former spouse or in-laws, "a relative," or "a person with whom the petitioner has had a continuing personal relationship." One can even be a household member without having lived in the same house, since "cohabitation is not necessary." While probably the definition of household member is not broad enough to encompass a long-term roommate or boarder with no personal relationship to the petitioner, one can visualize a very broad circle of people covered by this Act.

2.3.4 Grounds for Issuance of a Civil Protection Order

Statutory Grounds
In New Mexico "domestic abuse" which provides grounds for an order of protection is defined as "any incident by a household member against another household member resulting in: physical harm, severe emotional distress, bodily injury or assault, a threat causing imminent fear of bodily injury, criminal trespass, criminal damage to property, repeatedly driving by a residence or workplace; telephone harassment, stalking; harassment or harm or threatened harm to children as set forth in the paragraphs of this subsection." §40-13-2(C).

Criminal Acts
Many criminal acts provide the grounds for orders of protection. Crimes identified among the list of acts constituting "domestic abuse," §40-13-3.2(C), if committed against a family member, may give rise to orders of protection. This can be true whether or not an arrest is made or the case is prosecuted.

Criminal acts in domestic violence cases which provide grounds for issuing orders of protection include: assault, battery, criminal sexual penetration, kidnapping or restriction of the victim's movement, child abuse, destruction of property, threats, harassment, stalking, reckless endangerment, and disorderly conduct. Sexual assault or "marital rape" would fall within several categories of conduct constituting domestic abuse for the purpose of issuing an order of protection, e.g., §40-13-2(C) (1), (2), (3) and (4).

Interference with Personal Liberty
Domestic abuse can include kidnapping, forceful detention, moving a person a substantial distance from the vicinity where that person was found, compelling a person by force, threat of force or intimidation to engage in conduct from which the person has a right or privilege to abstain or to abstain from conduct in which the person has a right to engage.

Threats and Attempts to Harm
Threats to do violence or bodily harm or actions which place a family member in fear of imminent physical injury are sufficient to support the issuance of a protective order in New Mexico, §40-13-2(C)(4). An attempt that causes severe emotional distress or that constitutes a threat would also provide the basis for an order, id.

Harassing Behaviors
Harassment, telephone harassment, stalking, repeatedly driving by residence or workplace and tormenting can be grounds for issuance of a protective order, §40-13-2(C).

New Mexico law defines harassment as follows:

Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.

§30-3A-2.

"Stalking" is defined at §30-3A-3:

Stalking consists of a person knowingly pursuing a pattern of conduct that would cause a reasonable person to feel frightened, intimidated or threatened. The alleged stalker must intend to place another person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint or the alleged stalker must intend to cause a reasonable person to fear for his safety or the safety of a household member. In furtherance of the stalking, the alleged stalker must commit one or more of the following acts on more than one occasion:

(1) following another person, in a place other than the residence of the alleged stalker;

(2) placing another person under surveillance by being present outside that person's residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence of the alleged stalker; or

(3) harassing another person.

Emotional Abuse
§40-13-2(C) provides for issuance of an order of protection when an incident by one household member against another results in "severe emotional distress."

Damage to Property and Criminal Trespass
Criminal damage to property is grounds for issuing a protective order, as is criminal trespass, §40-13-2(C)(6) and (5). Although the Family Violence Protection Act includes criminal damage to property in its definition of domestic abuse when committed by one household member against another, §40-13-2, the Court of Appeals has held that a spouse cannot be charged with criminal damage to property when the property damaged was owned by the marital community. State v. Powels, 2003-NMCA-090, 143 N.M. 118, ¶ 5 (holding that husband’s destruction of wife’s vehicle, which was owned as community property, does not satisfy the criminal damage to property statute because community property cannot be considered the “property of another”). While criminal damage to community property thus cannot provide the basis for finding domestic abuse, Powels does not address whether a spouse can commit criminal damage to property when the property is separately owned. Moreover, Powels does not apply to criminal damage to property owned by any household members other than a spouse. Finally, Powels does not address the Family Violence Protection Act at all and does not prevent a court from considering a spouse’s damage of property as assaultive, threatening conduct.

2.4 Jurisdiction and Venue

2.4.1 Subject Matter Jurisdiction
Subject matter jurisdiction over requests for orders of protection in family violence cases is dependent upon the occurrence of an incident of domestic violence in the state or the presence of a danger to the petitioner in the state whether or not incidents of violence occurred within the jurisdiction.

An offense is considered to have occurred in the state if any part or element of the crime was committed in the state. See, e.g., Adair v. United States 391 A.2d 288 (D.C., 1978); United States v. Baish 460 A.2d 38 (D.C., 1983); Anthony T. v. Anthony J. 510 N.Y.S.2d 810 (N.Y., 1986) (telephone harassment initiated outside but received in the state could serve as basis for protective order); Pierson v. Pierson 555 N.Y.S.2d 227 (N.Y., 1990) (perpetrator's return to New York and his presence and service in New York presented a risk of violence to petitioner although the acts of violence occurred outside the state; had the appellant remained in Florida the risk of continued family violence would have dissipated). See also, R.I., Gen. Laws §15-15-2(d) (1982) (no minimum residency requirement so abused party who flees to another venue for shelter may seek relief in judicial district where temporarily located).

2.4.2 Personal Jurisdiction
Personal jurisdiction over the domestic violence perpetrator is based on the fact that an act was committed which caused a tortious injury in the state. Jurisdiction lies in any state where any part of the act occurred, whether or not any of the parties actually reside there. New Mexico courts may have jurisdiction under the long-arm statute, §38-1-6(A)(3) and (C), to issue orders of protection against respondents living in other states for acts arising from torts they have allegedly committed within the state. Due process requires that the respondent have minimum contacts with New Mexico "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Cronin v. Sierra Medical Center, 2000-NMCA-082, ¶ 21 (citations and internal quotation marks omitted). Jurisdiction may be obtained through personal service outside the state §38-1-16(B).

Courts in other states have found jurisdiction to exercise jurisdiction over domestic violence respondents residing on military and other federal installations within the state's borders. See, e.g., Tammy S. v. Albert S. (N.Y., 1978) 408 N.Y.S.2d 716 (court has jurisdiction over the residents although they lived in a federally owned installation); Cobb v. Cobb (Ma., 1989) 545 N.E.2d 1161 (Ma. 1989) (wife's status as a member of Armed Forces residing and working at a military installation in an area ceded to the federal government did not preclude the issuance of protective order. Further, protective order was effective in the ceded area, absent any indication that order interfered with federal function).

2.4.3 Venue
Venue is in the district court of the county where the petitioner or respondent resides, or where the cause of action originated, §38-3-1(A), whether in the original action or in an enforcement action. But note the discussion below on affording full faith and credit to protection orders.

2.4.4 Filing Deadlines
The Act places no limitation on the time within which an abused party must file for a protective order. Even prolonged delay in filing need not necessarily preclude the filing of a petition. Because, however, the Act contemplates that the petitioner is in need of immediate protection because of imminent danger, some courts adopt a general policy of not issuing orders when the petitioner seeks relief after significant time has elapsed since the incident. Exceptions to that policy would include situations where the petitioner has delayed filing because she been in hiding or hospitalized.

2.5 Relief Available through a Protection Order

2.5.1 Broad Judicial Authority to Provide Relief and Protection
§40-13-5(A)(7) provides broad authority to the court to protect the petitioner or other household member against abuse by the petitioner. Beyond that, the section provides authority to protect the economic well-being of the petitioner and dependents. The court's orders may be directed toward the respondent as well as law enforcement agencies.

"Judges should provide all relief that the victim needs given the particular circumstances of the case."

NCJFCJ at 21-22.

"To be effective both temporary and permanent protection orders must include all statutorily authorized protection against future abuse given the needs of the victim. Victims of domestic violence need a high level of protection if they are to be able to live a life safe, separate and apart from their batterer because the batterer typically has ready access to his victim."

N.I.J. C.P.O. Study at 33.

Standardized Domestic Violence form 4-965, Standard simplified order of protection, includes a list of remedies the court should consider for the protection of the petitioner. The following checklist may also be helpful in for the court in ensuring that all needed protection has been afforded.

2.5.2 Checklist of Relief Available

Click here for the checklist.

Some further explanation of the provisions provided in the checklist follows.

1. "No further abuse" clause.

a. Toward petitioner. The no abuse provision in the protective order prohibits all forms of domestic abuse as enumerated by the Family Violence Protection Act.

See §40-13-5 (court is to set forth specifically what respondent is to do or refrain from doing.) The standardized state orders specifically require respondent to refrain from committing any acts enumerated as domestic abuse in §40-13-2(C), including physical harm to petitioner or the children, harassment, threats, criminal trespass or damages, stalking, etc. Standardized Domestic Violence Form 4-965, item #4, "Domestic Abuse Prohibited," 2/27/01.

b. Toward petitioner's children and other household members. The Family Violence Protection Act explicitly authorizes courts to offer protection for petitioner's children, family members and household members as part of the protective order, where they are part of the perpetrator's pattern of abuse §40-13-5(A). Many courts also rely on inherent powers of the court to protect the children.

2. "Stay away" provisions.

a. From places frequented by the petitioner, the children, and other family and household members. The Act allows the court sufficient authority to order that the respondent stay away from places that the petitioner, the children, or other family and household members frequent. This includes the petitioner's person, place of employment, school, church, children's school/day care center/babysitter, homes of other family members, or petitioner's home. §40-13-5(A)(7); Standardized Domestic Violence Form 4-965, item #5, "Contact Prohibitions," 2/27/01.

b. Where the petitioner is in hiding, the court should order the respondent to stay away from the petitioner's residence without revealing its location. In such instances, the court may additionally order the respondent not to attempt to discover the location of the petitioner's residence and not to enlist the assistance of others in locating the petitioner, id. and item #10, "Parties Shall Not Cause Violation."

c. The court must specify a minimum distance that respondent must keep from petitioner when a stay away order is issued. The New Mexico standardized Order of Protection requires the Court to specify the minimum distance that Respondent must keep away at Petitioner's home or work, or in public places, Standardized Domestic Violence Form 4-965, item #5, "Contact Prohibitions," 2/27/01.

3. No contact provisions.

a. With petitioner. In cases where the court wishes to prevent continued harassment and threats towards the petitioner, the court should include within the no contact orders that there be no telephone calls or visits to the petitioner's home, work or other location. §40-13-5(A)(3); Standardized Domestic Violence Form 4-965, item #5, "Contact Prohibitions," 2/27/01. The standardized form includes an exception allowing contact in the event of medical emergencies involving the parties' children, or for joint counseling at the discretion of the counselor, id.

"[Judges must be]...careful to specify no telephone contact in the order - including calls to the victim's workplace. The need for identifying the victim's workplace is important to prevent misunderstanding by the respondent or the police. For example, one batterer terrified his wife by repeatedly parking across the street from where she worked so she could see him from her desk. Her supervisor became angry as her work began to deteriorate. However, the police reported that there was nothing they could do because this behavior was not specifically prohibited in the protection order. Thus, unless the victim's work address is unknown to the abuser and the victim feels safer keeping it confidential, it should be specified."

N.I.J. C.P.O. Study at 42.

b. With children or other household members. When the court believes that a child may be at risk for abduction, physical or emotional harm, or may be used by one parent to gain access to or advantage over the other, the court may wish to exercise its broad authority under §40-13-5(A)(7) to prohibit contact between the respondent and the children.

The court may wish to consider predicating contact with the children on attendance or completion of domestic violence counseling.

The order of protection may award temporary custody and provide for visitation giving primary consideration to the safety of the victim and children.

The names and birth dates of the children from whom the respondent is prohibited from having contact should be listed on the order.

When the protective order includes a prohibition against contact with the petitioner's children or limits contact to specified times, the court may also want to provide the petitioner with extra certified copies of the court order for delivery to each child's school (including the principal and each child's teacher), day care center, babysitter and/or church.

c. By others, such as in-laws, acting on behalf of the respondent to contact the abused party. The court may use its broad authority under §40-13-5(A)(7) to direct the respondent not to initiate contact through others if that represents a threat to petitioner.

d. The court may choose to specify in the order whether the parties may meet together with their attorneys, and procedures therefor.

4. Orders to vacate.

a. In order of protection. The Act provides express authority for the court to order an abuser evicted in a final order of protection, by granting sole possession of the
residence or household to the petitioner for the duration of the order, §40-13-5(A)(1).

b. Ex parte eviction of respondent.

i. Authority to evict
Ex parte judicial eviction of the respondent from the family residence lies within the authority vested in the court pursuant to §40-13-4 together with §40-13-5 A (1). These sections allow the court to issue a temporary no-contact order in the circumstances defined by the statute. The constitutionality of the practice is supported by United States Supreme Court cases on ex parte relief.

Most judges regard ex parte eviction of a batterer from the home as the single most effective remedy for most cases of domestic abuse. N.I.J. C.P.O. Study at 42.

ii. Constitutionality
Matthews v. Eldridge, 424 U.S. 319 (1976); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); Boyle v. Boyle, 12 Pa.D & C 3d 767 (1979); Marsh v. Williams, 626 S.W. 2d 223 (Mo. 1982).

c. Court's authority to issue vacate order when the respondent has sole interest in the family residence. The Act does not specify whether the court may evict a respondent from a home in which s/he has the sole interest. The court's authority in §40-13-5(A)(1) includes either granting the petitioner sole possession of the residence or ordering the respondent to provide suitable temporary housing for petitioner and any children respondent is obligated to support. Arguably, the court could find that the current residence is at least temporarily suitable until petitioner can relocate, even if it is solely owned by respondent. No order issued under the Act, however, may affect title to property §40-13-5 D.

d. Court's authority to issue vacate order after petitioner flees residence to escape abuse. Nothing in the New Mexico Act suggests that a battered party's right to receive protection under the domestic violence statute, including a vacate order, is affected by the petitioner having left the marital residence to flee abuse before coming to court for protection.

e. Additional relief the court should consider when issuing vacate order.

i. Order that respondent refrain from re-entering premises;

ii. Order respondent to provide financial support to allow petitioner to maintain herself in premises, §40-13-5(A)(1), (2) and (5);

iii. Surrender keys, do not damage petitioner's
belongings, etc., §40-13-5(A)(4).

5. Orders concerning personal property.

a. Rights to use of personal property. The Act gives the court authority to grant sole possession of the household to petitioner, which would presumably include all the property that remains within the household after respondent leaves, §40-13-5(A)(1). Additionally, §40-13-5(A)(4) permits the parties to use any joint property "in the usual course of business or for the necessities of life," provided that they provide an accounting for all expenditures after the order is served. See Standardized Domestic Violence Form 4-967, Custody, Support and Division of Property Order Attachment, item #3, "Property, Debts, Payment of Money," 2/27/01.

b. Restraining the respondent from taking, converting, selling, damaging or destroying any property in which the petitioner has any legal interest. §40-13-5(A)(4) restrains the parties from transferring, concealing, encumbering or otherwise disposing of petitioner's property or the joint property of the parties except in the usual course of business or for the necessities of life, and to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the party restrained in court. See Standardized Domestic Violence Form 4-967, Custody, Support and Division of Property Order Attachment, item #3, "Property, Debts, Payment of Money," 2/27/01.

c. Retrieval of property by respondent upon issuance of vacate order [See also discussion of police assistance below].

When the court issues a vacate order, it is advisable to specify in the order a time and date for the respondent to retrieve personal property and any other items specifically listed in the order.

Police stand-by procedures are very useful to prevent violence while property is being exchanged. See Standardized Domestic Violence Form 4-965, Simplified Order of Protection, item #13, "Notice to Law Enforcement Agencies," 2/27/01.

d. Petitioner's removal of property when petitioner is in hiding. When petitioner has moved to a secret address or is otherwise living out of the household, the court may specify how the petitioner may obtain property from the home, including:

• Specific property to be removed;
• Procedures for police accompaniment;
• Time property may be retrieved. (i.e., consider ordering that property may be removed during respondent's work hours).
• Order that respondent is not to be present when petitioner retrieves property

6. Authority to make orders concerning weapons; federal firearm statute.

When issuing orders of protection, a court may use its broad authority under §40-13-5(A)(7) to restrict the respondent's use or access to firearms, if the court deems it necessary to do so "for the protection of the petitioner." Whether or not the court makes any explicit ruling on this, however, federal law will frequently result in total restriction on respondent's possession of firearms. The court should advise the respondent in the order of the implications of the order on respondent's possession of firearms under federal law.

Under 18 U.S.C. §922(g)(8), persons who are subject to orders restraining them from abusing an "intimate partner" may not purchase or possess firearms or ammunition. If the order restrains the respondent from conduct typically included in orders of protection, is issued after notice and hearing, and includes findings or an express prohibition against the use of physical force, the order may trigger the anti-firearms provisions of the Omnibus Consolidated Appropriations Act of 1997. Note that this section does not apply to stipulated orders of protection because they are issued without an evidentiary hearing and without a finding that domestic abuse has occurred. The statute provides:

"It shall be unlawful for any person

(8) who is subject to a court order that -

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child;

or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

The penalty for violating this statute is a fine and/or a maximum ten year prison term. 18 U.S.C. §924(a)(2).

18 U.S.C. §921(a)(32) defines "intimate partner" as follows:

The term 'intimate partner' means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is the parent of a child of the person, and an individual who cohabitates or has cohabitated with the person.

Note that the definition of "intimate partner" in the federal law is not as broad as that of "household member" §40-13-2(D) of in the New Mexico Family Violence Protection Act.

Under the New Mexico Family Violence Protection Act, a court has broad discretion with respect to firearms §40-13-5(A)(7). A court may or may not impose firearm restrictions as necessary to protect the petitioner, or it may tailor firearms restrictions to specific circumstances. For example, a court might prohibit an individual from possessing a pistol in his or her residence, but still permit the individual to possess a hunting rifle at another separate location. It is not clear whether a New Mexico order that allows access to firearms under its own terms would nonetheless result in a prohibition against the purchase or possession of all firearms under 18 U.S.C. §922(g)(8). On its face, the federal statute forbids the purchase or possession of firearms or ammunition in interstate or foreign commerce by persons "who are subject to a court order," without any deference to the court order's provisions in this regard. See New Jersey v S.A., 675 A2d 678 (NJ Super Ct. App. 1996), holding that 18 U.S.C. §922(g)(8) prohibited return of confiscated firearms to person subject to state domestic violence restraining order. Among the issues to consider in resolving this question are: 1) whether the court order was issued after a hearing, and whether the restrained party had notice and an opportunity to participate as provided in 18 U.S.C. §922(g)(8)(A); 2) whether the purchase or possession of firearms or ammunition is "in interstate or foreign commerce"; and, if so, 3) whether the federal statute is preemptive of state law that would permit possession of a firearm under certain circumstances. Federal preemption questions are governed by 18 U.S.C. §927.

Relief from disabilities imposed under 18 U.S.C. §922(g)(8) is available upon application to the Secretary of the Treasury or his or her delegate. The Secretary may grant relief "if it is established...that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." 18 U.S.C. §925(c).

In addition to the forgoing restrictions, federal law forbids the sale of firearms or ammunition to a person who is subject to an order of protection or conditional release order that restrains an individual from abusing his or her intimate partner. See 18 U.S.C. §922(d)(8).

Since the federal prohibition on purchasing firearms is likely to take effect automatically after issuance of many orders of protection, the court should advise each respondent of the provisions of the Act so that the respondent does not inadvertently violate them-or cause someone else to violate them by selling weapons to respondent. See Standardized Domestic Violence Form 4-965, Simplified Order of Protection, item #2B, "Consequences of Entry of Order of Protection," 2/27/01.

7. Authority to order treatment for domestic violence perpetrators.

a. New Mexico law specifically authorizes courts to order domestic violence perpetrators into treatment as part of the court's protective order. Effective July 1, 2001, the Family Violence Protection Act explicitly authorizes the court to include in its order of protection a requirement that "the respondent participate in, at the respondent'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."

b. Perpetrators with substance abuse problems should be ordered to attend separate alcohol and/or other drug treatment and testing prior to batterer's treatment. "In cases in which the offender is a substance abuser, many judges and victims favor outpatient or voluntary inpatient chemical dependency treatment programs. However, because these programs do not address the issues of violence or control, they should not be viewed as an effective substitute for batterer counseling...addiction counseling may be needed first...with batterer counseling to follow."

N.I.J. C.P.O. Study at p. 44.

c. The court should exercise extreme care when deciding
whether to require the abused party to participate in court-mandated treatment programs intended for perpetrators, family counseling or individual counseling. "Requiring the victim to enter counseling may put her in increased jeopardy by suggesting to the batterer that he is not responsible for his violence and thereby giving him an excuse to continue his abuse. Couples' counseling improperly conducted may have the same effect; furthermore, it may create a setting in which the victim is at an inherent disadvantage given her fear of the batterer."

N.I.J. C.P.O. Study at 44.

The court should order counseling for the abused party only when that is clearly in the victim's best interest, not as a substitute for issuing relief.

8. Orders concerning custody.

a. Addressing the issue of temporary custody in a civil protective order proceeding can prevent further violence by reducing the perpetrator's access to the abused party. If the perpetrator has continued access to the abused party through the children, abuse of the petitioner may continue. (See NCJFCJ at 26.)

"If victims of family violence have children in common with their batterers, courts often must adjudicate the matter of custody and visitation when issuing protection orders and dissolutions. Courts have sometimes failed to evaluate and provide for children who have lived in abusive homes, and such failure can have tragic consequences for those children."

NCJFCJ at 9.

b. The Family Violence Protection Act authorizes the court to grant temporary custody of the children to either party in an emergency, temporary, or final order of protection or an ex parte emergency order of protection.

• §40-13-3.2(C)(3) authorizes the court to "grant temporary custody of any minor child in common with the petitioner and the respondent to the petitioner, if necessary."
• If the court issues an order of protection, the statute authorizes the judge to award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the petitioner on a basis that gives primary consideration to the safety of the victim and the children
  §§40-13-5(A)(2) and 40-13-3.2(A).
• When prior orders relating to child custody have been issued by any court, the statute still allows the judge in the family violence proceeding to issue an initial order of protection, including child custody, visitation and support arrangements "on a basis that gives primary consideration to the safety of the victim and the children." §40-13-5(A)(2). The statute recognizes, however, that such an order might not be consistent with any orders issued in pending or concluded domestic relations cases between the parties. Thus, "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 pending or prior custody or support action."

c. "Civil protective orders should remove the offender from the home and allow the victim and children to remain with appropriate protection, safety plans, and support... Judges should ensure that necessary services are provided, and that adequate safety plans are in place for both the victimized spouse and the children..."

NCJFCJ at 24.

d. The Gender Bias Task Force study of protective order cases heard by District of Columbia Superior Court Judges for a one year period revealed a high correlation between ineffective custody and visitation provisions and contempt of protective orders.

"Simply put, it is not enough to separate the parties; nor is it enough to order the batterer to stop beating the victim. The latter doesn't work without effective enforcement. The former - keeping the parties separated - doesn't work without resolving other family issues such as custody, visitation, possession of the parties' mutual residence and financial support, issues which can serve as a catalyst for continuing abuse." District of Columbia Courts, Final Report of the Task Force on Racial and Ethnic Bias and the Task Force on Gender Bias in the Courts, at 141, 150, Appendix H at 21, May, 1992.

e. Addressing custody as part of a protective order can reduce the incidence of parental kidnapping.

Although not specifically provided in the Family Violence Protection Act, the standardized form includes language permitting the court to order either petitioner, respondent or both not to "hide the child(ren) from the other parent or permanently remove the child(ren) from the State of New Mexico." See Standardized Domestic Violence Form 4-967, Custody, Support and Division of Property Order Attachment, item #1, "Custody," paragraph E, 2/27/01.

f. New Mexico's statute directs judges to make custody determinations in protective order cases giving primary consideration to the safety of the abused party and the children.

§ 40-13-5(A)(2) authorizes an award of custody, visitation and child support "on a basis that gives primary consideration to the safety of the victim and the children." Other factors should be considered in an appropriate domestic relations case between the parties.

9. Visitation

a. Nowhere is the potential for renewed violence greater than during visitation. N.I.J. C.P.O. Study at 43-44.

b. Abusive parties seek visitation for two reasons. Like other parents they love or miss their children, particularly during this time when they have been separated from the family. Abusive parties also seek contact with the children to maintain contact, intimidate and control the abused party. Judge Ben Gaddis, "Domestic Abuse Protective Order Concepts" (Hilo, HI: 1992) at p. 8.

c. To reduce the potential for renewed violence, the court can do the following:

• Craft civil protection orders to eliminate the need for any contact between the parties during visitation. See Standardized Domestic Violence Form 4-967, Custody, Support and Division of Property Order Attachment, item #1, "Custody," paragraph B, 2/27/01.
• Make specific and detailed orders regarding visitation, id.
  Ordering "reasonable rights of visitation" or ordering that visitation "will be arranged later" may place the petitioner in constant contact with the batterer and subject the petitioner to the batterer's control and harassment. N.I.J. C.P.O. Study at 43.
• Order that visitation be supervised. "(T)he propensity for continued violence remains after the divorce or separation and frequently recurs during unsupervised visitation." NCJFCJ at 26.
• Order the perpetrator to complete a domestic violence treatment program prior to any visitation. §40-13-5(A)(6).
• Order the perpetrator to undergo a psychiatric evaluation before visitation is authorized.
• Where the perpetrator has a history of alcohol or other drug abuse, order that a treatment program for both alcohol and/or drugs and violence be completed prior to any visitation. §40-13-5(A)(6).
• Where treatment is ordered and completed, order that the perpetrator not consume alcohol or other drugs before or during the visit, and that the abused party may refuse visitation if the perpetrator appears to have violated this condition. N.I.J. C.P.O. Study at p. 43.

10. Monetary relief, including child and spousal support.

a. The Family Violence Protection Act authorizes the court to order monetary relief as part of protective orders, particularly when the perpetrator is removed from the family home. This relief can be the result of the separation, and thus a legal obligation to support the children or spouse, or it can arise out of the abuse, not the separation, and thus be restorative in nature.

"Civil restraining orders should address...[f]inancial support and maintenance for the victim and family members... Economic dependence is frequently the reason the victim returns to the offender. Such ex parte relief is strongly supported by both cases and statutes."

NCJFCJ at 22.

b. Checklist of possible monetary relief available in a protective
order

• Financial support and maintenance for petitioner and children
• Rent, mortgage or alternate housing costs
• Utilities
• Repair bills for damage due to violence
• Replacement of locks
• Petitioner's lost earnings due to abuse
• Child care costs
• Medical, dental and/or, counseling bills for abused party and/or
  the child(ren)
• Insurance premiums
• Litigation costs, if allowed
• Enforcement of child support obligations through wage withholding

See §40-13-5(A)(5).

11. Ordering police assistance.

The Family Violence Protection Act includes a number of mandatory
duties on law enforcement officers.

a. Take necessary steps to protect the victim from further domestic abuse.

§40-13-7 imposes a number of obligations on police officers called upon for assistance by a victim of domestic violence. Specific duties imposed upon the responding officers include: advising the victim of remedies under the Act and availability of shelters and other support services; providing transportation to a shelter if requested; accompanying the victim to the residence to retrieve necessities; placing the petitioner in possession of the premises if requested; arresting the abuser and filing a report; and advising the victim of filing procedures under the Act.

b. Serve notices of hearing and orders.

If an order of protection is entered by the court, then the clerk sends it to the local law enforcement agency for personal service on the respondent (unless the respondent or attorney was in court when the order was issued) at no cost to the petitioner. §40-13-6(A).

c. Read the order to the respondent as part of service.

The court may direct that portions of the order be read to the respondent during service.

"Many officers charged with serving read the key terms of a protection order to the defendant as part of service. For example, when the order evicts the defendant from the home, the police officer... tells the respondent that he is to have absolutely no contact with his partner and is to stay away from the joint residence - even if he believes he has been invited back by the victim; a violation, the officer warns, could result in an arrest. The officer also informs the defendant of his right to a hearing and notes the hearing date. By reading the order aloud, an officer can compensate for any literacy barriers a respondent may have and can preclude future claims by a batterer that he did not understand the protection order."

N.I.J. C.P.O. Study at 60-61.

d. Arrest for violations when probable cause exists to believe a violation of a protective order has occurred.

• The Family Violence Protection Act directs law enforcement officers to "arrest without a warrant and take into custody a person whom the peace officer has probably cause to believe has violated an order [of protection]." §40-13-6(C).
• This includes criminal contempt arrests:

"(M)any - perhaps most - police officers are unaware that they may arrest any offender they witness violating a protection order even if the charge is only criminal contempt, and that they may arrest him based on probable cause without having seen the violation if state statute permits warrantless arrest for a violation." N.I.J. C.P.O. Study at 52.

e. Assist with vacate orders.

The court may call upon law enforcement to assist in carrying out the order. See Standardized Domestic Violence Form 4-965, Simplified Order of Protection, item #13, "NOTICE TO LAW ENFORCEMENT AGENCIES," 2/27/01.

f. Assist with retrieval of property by accompanying the party retrieving belongings and standing by while the items listed in the order are retrieved.

The order needs to be specific, since police officers will generally not resolve disputes over items not listed in the order. See Standardized Domestic Violence Form 4-965, Simplified Order of Protection, item #13, "NOTICE TO LAW ENFORCEMENT AGENCIES," 2/27/01.

2.5.3 Content of Order
Orders of protection should be specifically worded:

"The relief provided should be explained fully and the terminology of the protective order should be highly specific so that the parties, law enforcement and other judges will know exactly what is intended. Otherwise, enforcement will be difficult."

N.I.J. C.P.O. Study at 33.

When issuing its order, the court can facilitate enforcement by insuring that the following are included:

• Physical description of the restrained party, including date of birth, if known.
• Expiration date of the order.
• An order directing all law enforcement agencies to enforce the order by all lawful means, including arresting a respondent who violates any provision of the order.

2.6 Ex Parte and Temporary Orders of Protection

2.6.1 Authority in the Family Violence Protection Act
The Family Violence Protection Act is designed to provide protection against domestic violence through the courts virtually as soon as the violence is first reported. Ex parte emergency orders of protection are issued by the court upon a proper request by a law enforcement officer. Temporary orders of protection may be granted ex parte or after notice and hearing, upon filing of a petition for order of protection.

2.6.2 Ex Parte Emergency Orders Of Protection: Requirements
Purpose. Ex parte emergency orders of protection are short-term, emergency measures, issued in the field. Their purpose is to provide protection to victims and their children until they can come to court and seek a temporary order under §40-13-4.

Requests. Ex parte emergency orders of protection can only be issued at the request of a law enforcement officer. §40-13-3.2(A).

The request may be submitted to the court by the officer in person, by telephone or via facsimile, and must be accompanied by a sworn written statement setting forth the need for an emergency order of protection and stating the location and telephone number of respondent, if known.

The court may issue the emergency order of protection if it finds reasonable grounds to believe that the petitioner or the petitioner's child is in immediate danger of domestic abuse, following an incident of domestic abuse by a household member. Examples of factors the court may consider to determine whether the standard of "immediate danger" has been met may include:

• History of violence
• Petitioner's injuries
• Respondent's access to weapons
• Threats to attack petitioner
• Threats to attack or abduct the children
• Threats or attacks on other household members
• Drug or alcohol abuse
• History of mental disorder
• Threats of suicide

A district judge must be available to hear such petitions at all times, as determined within each district, §40-13-3.2(D).

Issuance. Although the order must be written, the statute authorizes the court to issue the emergency order to the law enforcement officer in writing, by telephone or by facsimile.

If the officer receives the order orally, s/he must write and sign the order, with the judge's approval, on the approved form. §40-13-3.2(B)(1); Standardized Domestic Violence Form 4-973, Emergency Order of Protection, 2/27/01.

The officer is then required immediately to serve a signed copy of the order on the respondent if possible, complete the affidavit of service, provide petitioner with a copy of the order, and provide the court with the original order by the close of the next judicial day. §40-13-3.2(B)(2)(4).

Relief Available. The court is empowered to issue the following relief if the requirements for an ex parte emergency order of protection are met:

• Enjoin the respondent from threatening or committing acts of domestic abuse against petitioner or any designated household member; §40-13-3.2(C)(1);
• Enjoin the respondent from any contact with petitioner, including harassing, telephoning, or communicating in any way §40-13-3.2(C)(2);
• Grant petitioner temporary custody of any minor child in common with petitioner and respondent §40-13-3.2(C)(3).

Expiration. Emergency orders of protection expire 72 hours after issuance or at the end of the next judicial day, whichever is later. §40-13-3.2(E). The court is required to note the expiration date clearly on the order, id.

By comparison, temporary emergency orders of protection that are issued ex parte last through the hearing on the order, which must occur within ten days of issuance. §40-13-4(C).

2.6.3 Review of Emergency Protection Orders
By statute, "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." §40-13-3.2(F).

2.6.4 When an Ex Parte Emergency Order Is Not Granted
If the court does not grant an ex parte temporary order of protection, then the court must serve notice to appear upon the parties and hold a hearing on the petition for order of protection within 72 hours after the petition was filed. If notice cannot be served within 72 hours, then the court issues a temporary order of protection which is extended for ten days. §40-13-4(D).

2.6.5 Temporary Orders of Protection
Like emergency protection orders, temporary orders of protection are issued ex parte. Requirements. Upon filing of the petition by the petitioner, the court must immediately determine whether the petition or affidavit state specific facts sufficient to show probable cause to reasonably believe that an act of domestic abuse has occurred. §40-13-4.

• If the judge finds probable cause, the judge must immediately issue grant an ex parte temporary order of protection without requiring the petitioner to post bond. §40-13-4(A).
• The court must then cause the temporary order of protection and notice of hearing to be served immediately on the alleged perpetrator. §40-13-4(B).
• The court must then hold a hearing on the question of continuing the order within ten days of its issuance. §40-13-4(C).
• The district court may issue a Temporary Restraining Order based upon the same incident that justified issuance of the Emergency Order of Protection. §40-13-3.2(G).

Relief Available. A temporary order of protection is issued without requiring the petitioner to post bond. It can order any of the relief available through an order of protection, but subject to the time limits set forth in §40-13-4. See Standardized Domestic Violence Form 4-963, Temporary order prohibiting domestic abuse, 2/27/01.

2.6.6 Recording Abused Party's Injuries
Where possible, the judge should record information regarding the petitioner's visible injuries in written findings on the temporary order.

Recording this information becomes important for use in the subsequent hearing on the permanent civil protective order since by that time the evidence of these injuries may have healed. N.I.J. C.P.O. Study at 28.

2.7 Pretrial Issues

2.7.1 Filing and Service Fees
Both §§40-13-3.1(D) and 40-13-6(A) provide that an alleged victim of domestic abuse shall not be required to pay the cost of issuance or service of a protection order. Thus it would appear that even a non-indigent petitioner is entitled to waiver of court costs associated with issuance or service of a protection order.

2.7.2 Service Of Process And Service Of Protection Orders
Service of process of all protection orders is performed by law enforcement officers. Temporary orders of protection are filed with the clerk, who is required to send them to the local law enforcement authority for personal service on the respondent. §40-13-6(A).

2.7.3 Discovery
Whenever possible, requests for production of documents, or subpoenas for documents, are preferable to face to face depositions.

The ongoing risk of continued abuse or intimidation in domestic violence cases may render depositions unwise. Documents that may be typically subpoenaed or requested include: medical records, documentation of income of the parties for purposes of determining support and other forms of monetary relief and any other documentary evidence that will not improperly restrict case preparation or expose the abused party to greater danger.

Information that may endanger the abused party or the children if obtained by the respondent, including the victim's address, telephone number, the name of the children's school or day care provider, domestic violence shelter's address, etc. may need to be protected by the court.

2.7.4 Case Scheduling
The Family Violence Protection Act provides expedited handling of domestic violence cases for protection orders. The Act requires all courts to have a district judge available to hear petitions for emergency orders of protection, §40-13-3.2(D). Given the Act's authorization of telephone or fax petitions by law enforcement officers and verbal approval by the judge for the officer to complete standardized emergency forms, it is clear that the legislature intended to provide expedited handling of these cases.

Temporary orders must be set for hearing within ten working days of issuance, which date may be extended upon a showing of good cause. Hearings on petitions for orders of protection where ex parte temporary orders have not been issued must occur within 72 hours. §40-13-4(C) and (D).

Where a continuance is necessary during trial, the court should be certain that all warranted temporary orders remain in effect or are reinstated.

2.7.5 Practices To Improve Court Effectiveness In Protection Order Proceedings
1. The National Council of Juvenile and Family Court Judges makes several recommendations for courts, including:

• Providing “secure, separate waiting areas for victims in family violence cases.” (NCJFCJ at 40.)
• Examining “their facilities, procedures, personnel attitudes and training agendas to identify and remove barriers to victims” who seek relief from the court. (NCJFCJ at 41.)
• Providing special training to “[a]ll court personnel with responsibility for initial contact [with victims] and intake in family violence cases” in the following areas: sensitivity to victims; [e]nsuring the safety of the victims, [and] . . . [r]eferring the victim and family members to needed services.” (NCJFCJ at 44.)

2. Role of lay advocates in orderly preparation and presentation of domestic violence cases

Lay advocates can assist the court with civil protective order proceedings by: (N.I.J. C.P.O. Study at 24-26.)

• explaining the legal help available, potential relief, and the limitations of the protective order;
• helping prepare the petitioner for the hearing on the full order;
• pre-screening petitioners to make sure they meet the eligibility criteria under the statute;
• ensuring that petition forms are properly completed before the hearing;
• accompanying distraught or intimidated petitioners to the hearing;
• arranging to have witnesses appear with the petitioner;
• addressing the petitioners' fears about appearing for the permanent hearing;
• notifying petitioners of their duty to attend hearings; and
• helping to identify cases in which attorney assistance is essential. (N.I.J. C.P.O. Study at 24-26.)

3. The court may wish to encourage local organizations to create and maintain a children's waiting area where childcare is provided while the petitioner/respondent is involved in the court process.

4. Enforcement of the order can be facilitated by instructing petitioner to do the following:

• Keep personal possession of the order at all times.
• Notify the local police immediately of any violation.
• Request that a police report be made. Obtain the report number, and information on how to receive a copy.
• Obtain the name and badge number of the officer who responds to the call.
• File a contempt motion with the court.
• Request that prosecutor charge the perpetrator with all crimes involved in the violation.

2.7.6 Representation Issues

Unrepresented Parties.

Unrepresented parties in domestic violence cases may present special concerns for courts. Wherever possible, special efforts should be made to ensure that petitioners understand the process, the role of the court, and the court's authority in the matter.

1. Use of standard simplified forms.
The Act requires that unrepresented litigants have access to standard
simplified petition forms with instructions for completion, and that law enforcement agencies make such forms available to victims of domestic violence. § §40-13-3(H) and 40-13-7(B)(6). The Supreme Court has adopted these forms. Standardized Domestic Violence Form 4-961, Petition for Order of Protection from Domestic Abuse, 2/27/01. This standardization and simplification will assist courts in obtaining the information they require from unrepresented petitioners to determine the merits of each claim for relief.

2. Assistance by court personnel.
Some judges find it useful to instruct court clerks to assist petitioners in applying for civil protection orders, and to provide training for court clerks in the handling of these cases.

a. Court clerks should be given written instructions . . . to provide appropriate assistance in filling out the petition. (N.I.J. C.P.O. Study at p. 27).

Although court clerks are barred from giving legal advice, that does not preclude their assisting unrepresented litigants by explaining to them the kind of information called for in the various lines of the form. See Supreme Court policy on giving legal advice.

b. The court may want to instruct the clerk to check for past or pending cases involving the same family, and to indicate in the court jacket if such cases exist.

Although the petitioner is required to state whether any other domestic action is pending between the petitioner and the respondent, the petitioner may not understand the question or be able to explain the past or pending litigation adequately.

c. The court should have clerks develop lists of advocacy groups and legal services organizations in the area so that they may refer petitioners to them for assistance.

Non-English Speaking Parties And Recent Immigrants

1. Non-English speaking parties and those who have recently arrived in this country present special concerns regarding representation, as they may not understand court procedures due to language or cultural barriers. This may result in their inability to articulate their needs, the relief they seek, and/or relevant facts.

2. The court may need to adopt special procedures to ensure that non-English speaking parties and recent immigrants fully understand their rights and court proceedings. Such procedures could include:

• Preparation of court forms in the major languages spoken in the
  local community.
• Providing court translators.
• Employment of bilingual, bicultural court clerks who can explain court proceedings.

2.8 Trial Issues

2.8.1 No Right to Jury Trial
There is no right to jury trial at a hearing for issuance of a protection order.

2.8.2 Failure to Appear
1. When the petitioner does not appear at the hearing on the order

a. The National Institute of Justice concluded that there are a variety of reasons why a petitioner may not appear for the protective order:

• The abused party is intimidated by threats of greater violence from the respondent as a result of pursuing court action. (N.I.J. C.P.O. Study at p. 29).
• The abused party is physically unable to appear for the hearing due to injuries.
• The abused party has been told by police or other local officials that if they want to drop the matter, they should not appear in court.
• The abused party does not understand that a second hearing is required.

b. Prior continuances or procedural delays may also discourage the abused party from appearing at the hearing. The more expeditiously a case is handled, the more likely the petitioner is to pursue remedies.

Ford, D.A. and Burke, M.J., Victim-Initiated Criminal Complaints for Wife Battery: An Assessment of Motives, Paper presented at the Third National Conference for Family Violence Research, University of New Hampshire, Durham, N.H., July 1987.

c. The court may want to consider asking the respondent who appears in the petitioner's absence to wait, and then direct an advocate or court officer to telephone the petitioner and ascertain the reason behind the petitioner's failure to appear. (N.I.J. C.P.O. Study at p. 28.)

d. Where the petitioner has failed to appear, the court may dismiss the proceeding with prejudice, but with the understanding that the petitioner may refile for relief should a new incident or further need arise.

2. When the respondent has been served with notice of the hearing and fails to appear, the court should issue a protective order if evidence supports the required evidentiary findings.

2.8.3 Notice and Review of Other Court Proceedings and Orders
1. The court must be familiar with other final and pending proceedings involving the parties.

It is critical that family, criminal, civil, and juvenile court judges avail themselves of information regarding pending legal processes and current court orders involving the same parties so as to avoid issuing conflicting orders as discussed in Section D below. The Act contemplates this by requiring the petitioner to state whether any other domestic actions are pending, §40-13-3(C) , and by the requirements of §40-13-5(C). That provision requires the court to state on the order of protection if it supersedes or alters any prior orders of the court. In particular, if the court's order of protection affects child custody or support issues previously or currently in litigation, then that portion of the order may be entered, but must be transferred to the court involved in the other litigation, whether concluded or pending.

2. Protection orders can be provided as a remedy whether in
addition or as an alternative to pre-existing criminal or divorce-
related remedies, thus expanding the total range of judicial powers
available. (N.I.J. C.P.O. Study at 1).

2.8.4 Record and Findings
Although neither the statute nor the standard simplified forms for court orders explicitly require the court to issue detailed written findings, the court should consider doing so in circumstances where the court's findings could prove useful in subsequent proceedings.

The detail of the oral or written findings needed will vary depending on the context in which the civil protective order is issued.

a. Default orders.