3.1 Overview
The effectiveness of protective orders depends largely on how well they are enforced by both the judiciary and law enforcement.

"Comprehensive provisions of restraining orders are only as good as their enforcement. To improve enforcement, courts should develop, publicize, and monitor a clear, formal policy regarding violations. This might include follow up hearings, promoting the arrest of violators, incremental sanctions for violations, treating violations as criminal contempt, and establishment of procedures for modification of orders. In addition, courts can establish procedures for monitoring offenders for compliance."

National Council of Juvenile and Family Court Judges (NCJFCJ), Family Violence: Improving Court Practice, 1990, pg. 21-22.

"Enforcement is the Achilles' heel of the civil protection order process, because an order without enforcement at best offers scant protection and at worst increases the victim's danger by creating a false sense of security. Offenders may routinely violate orders, if they believe there is no real risk of being arrested.

[I]t appears that when protection orders only offer weak protection, the explanation may lie in the functioning of the justice system rather that the nature of protective orders as a remedy. [C]hanges in the justice system's handling of protection orders can significantly increase their utility. [W]here judges have established a formal policy that offenders who violate an order will be apprehended and punished, often with a jail term, both judges and victim advocates report the highest level of satisfaction with the system."

National Institute of Justice (N.I.J.), Civil Protective Orders: Legislation, Current Court Practice and Enforcement, March 1990, at pg. 2 (Cited as N.I.J. C.P.O. Study).

"Courts can develop, publicize and monitor a clear, formal policy regarding violations in order to encourage respect for the court's order and to increase compliance. [C]ourts can develop guidelines specifying (1) what procedures law enforcement officers are statutorily required and authorized to follow and (2) what procedures judges themselves will follow in holding violation hearings. By developing and publicizing these guidelines in advance, judges would be able to achieve more uniformity of judicial response, would encourage compliance and respect for the judiciary among defendants (and their attorneys), and might avoid unnecessary and protracted appeals...Although some provisions of a court enforcement policy must be tailored to the specific enforcement tools provided by the statute, other policies are adaptable to virtually any jurisdiction."

N.I.J. C.P.O. Study at p. 49.

"Aggressive enforcement and prompt case handling by the court itself is also crucial. While police officers can assist the court by arresting and detaining offenders who violate protection orders, the court will ultimately be responsible for long-range enforcement."

N.I.J. C.P.O. Study at p. 52.

This chapter outlines considerations for the court when enforcing court orders. It is meant to assist the court in improving the effectiveness of court orders in domestic violence cases.

3.2 Judicial Procedures to Help Ensure Compliance with Orders of Protection

3.2.1 Procedures for Sending Protection Orders to the Local Law Enforcement Agency
The Family Violence Protection Act requires that the court file each order of protection with the clerk of the court and that the clerk send a copy of the order to the local law enforcement agency. §40-13-6(A). The latter requirement is intended not only to have the law enforcement agency effect service (at no charge) on the respondent, but also to ensure the local authorities are aware of the existence of the court's order if they are called to a disturbance involving the parties. With the order of protection in hand, police responding to a call from or on behalf of the victim can more readily take the actions authorized in the order.

3.2.2 Filing Orders of Protection in the FACTS(tm) System
Although efforts have been made to develop a central statewide registry for domestic violence orders of protection, those efforts have not been successful to date. Courts should file orders of protection in the FACTS(tm) system. At such time as a central registry becomes operational, courts should be certain to register all orders of protection. This practice will alert courts and law enforcement officers in other jurisdictions of the outstanding order and allow them to respond more effectively.

3.2.3 Judicial Tools to Enforce Compliance with Orders of Protection
Courts have a variety of tools to enforce compliance, especially in cases where there is reason to believe that violations of the order of protection are likely. Among the options the court has are to:

• Retain the case to monitor compliance.
• Arrange for formal supervision of all criminal contempt cases through probation services where available and court volunteers.
• Swiftly issue sua sponte orders to show cause on any contempt violations brought to the court's attention by police, probation, service providers, counselors, or the petitioner.
• Treat failure by the respondent to participate in court-ordered treatment or counseling as a significant violation of the order.
• Conduct hearings promptly on contempt motions.
• Sentence persons found in criminal contempt to increasingly severe penalties with each subsequent contempt.

Adapted from NCJFCJ, Family Violence: Improving Court Practice, 1990, at 20-21.

3.3 Remedies to Punish Violations of Orders of Protection

3.3.1 Arrest
The Family Violence Protection Act mandates police officers to "arrest without warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order" pursuant to the Act. §40-13-6(C). Moreover, §40-13-6(G) requires the officer charging the person with the violation of the order to also "file all other possible criminal charges arising from an incident of domestic abuse when probable cause exists." Clearly, the statute has given law enforcement officers considerable responsibility and authority to enforce judicial orders of protection. A judge may question any failure by law enforcement to uphold this responsibility when brought to the attention of the court.

See, however, the caveat about warrantless arrests written by the Rules of Civil Procedure Committee, which drafted the uniform domestic violence forms for Supreme Court approval:

"Absent the exigent circumstance that the misdemeanor is committed in the presence of the officer ("If an officer observes the person arrested committing a felony, exigency will be presumed," Campos v. State, 117 N.M. 155, 159 (1994)), the New Mexico Constitution appears to bar blanket authority to make warrantless arrests for misdemeanors committed outside the presence of the officer. . . . To avoid having the Supreme Court give approval to a form containing language of questionable constitutional validity, the committee did not use the statutory language in the portion of the Final Order describing the power of a law enforcement officer to make a warrantless arrest for the misdemeanor crime (Section 40-13-6(D) NMSA 1978), of violating the Final Order of Protection."

Civil Form 4-965, Committee Comment.

3.3.2 Misdemeanor Charge
Violation of an order of protection issued under the Family Violence Protection Act is a misdemeanor, punishable as provided under §31-19-1. This means that even though only a district court may issue an order of protection, magistrate and metropolitan court judges have authority to hear violations of those orders as misdemeanors, §40-13-6 E. A second conviction is punishable by a mandatory jail term of not less than seventy-two consecutive hours-which may not be suspended, deferred or taken under advisement. Id.

Note that any violation of the terms of an order of protection can support a criminal conviction. In State v. Nysus, 2001-NMCA-023, the defendant argued that his telephone call to his former wife's place of employment was de minimis and insufficient to support his conviction for violating a protection order. The court affirmed the sufficiency of the evidence for the conviction, pointing out that the order prohibited any contact and did not make an exception for de minimis contact. The defendant's telephone call violated the order.

Unlike the defendant in Nysus, who actually spoke with his former wife on the telephone, the defendant in State v. McGee was convicted of violating a protection order by making four telephone calls to the victim’s home, even though the victim did not answer the telephone and the defendant did not actually speak to her. As in Nysus, the protection order here prohibited the defendant from “contacting” the victim. The Court of Appeals affirmed the defendant’s convictions of violating a protection order and explained that “’contact’ is not limited to a direct communication.” State v. McGee, 2004-NMCA-14 (2003), ¶10, 84 P.3d 690.

3.3.3 Contempt of Court
The court is required to include in the order a notice that violation of the protection order constitutes contempt of court and may result in a fine or imprisonment or both. §40-13-5(B). The uniform domestic violence forms have adopted language fulfilling this requirement. See, uniform domestic violence Form 4-965, Order of Protection, Paragraph 2, 2/27/01; and Form 4-963, standard temporary order prohibiting domestic abuse, p. 3, Enforcement of Order, 2/27/01.

Criminal or Civil Contempt?
Whether the contempt is civil or criminal depends on the purpose that the court seeks to achieve through its punishment. "Where a contempt sanction is punitive, not remedial, 'the proceeding is one of criminal contempt ¶8, 129 N.M. 719, 13 P.3d 77 (citation omitted).'" Beverly v. Beverly, 2000-NMCA-097, [8]. "[C]riminal contempt is punishment that vindicates the authority of the court." State v Pothier, 104 N.M. 363, 365 (1986). In civil contempt, on the other hand, "the punishment is remedial to coerce the defendant to perform the act ordered by the court." Id. at 364. "Imprisonment for civil contempt is ordered where a defendant has refused to do an affirmative act required by the provisions of an order. The decree in such cases is that a defendant stand committed unless and until he performs the affirmative act required by the court's order." Id. Civil contempt can also be imposed to compensate the complainant for losses sustained. State ex rel Apodaca v. Our Chapel of Memories of New Mexico, Inc., 74 N.M. 201 (1964). The courts have recognized that contempt is often both civil and criminal in nature in the same case. "Indeed, the same conduct or acts may justify a court in resorting to coercive and to punitive measures." Id. at 204 (citations omitted).

The significance of determining whether a contempt is civil or criminal lies in the protections afforded the defendant. If a contempt charge is determined to be criminal in nature, the defendant is afforded rights of personal service, opportunity to be present, conviction only by proof beyond a reasonable doubt, and other rights not necessarily afforded to civil defendants. Reunification of the parties after issuance of the civil protective order is not a defense to contempt.

Criminal Contempt
Examples of Criminal Contempt. Examples of criminal contempt in domestic abuse cases include criminal acts against the petitioner or another protected party under the order of protection. These acts may take the form of assaults, battery, threats, stalking, harassment, rape, forcible detention, or property crimes, among others. In such cases, the primary purpose of the sentence is clearly to punish for past wrongdoing. The court also applies criminal contempt when it imposes sanctions for acts that are not criminal apart from their defiance of the order of protection. Such acts may include violations of no-contact or stay-away provisions or temporary support or custody obligations.

Standards Governing Proceedings in Criminal Contempt. Since criminal contempt is a criminal charge, the defendant is entitled to many of the constitutional rights of an accused. For example, an order to show cause can only issue on the basis of an affidavit or sworn testimony provided to the court to support that order. State v. Helms, 108 N.M. 772 (1989). Defendants are entitled to personal service of process on themselves--not on their attorneys. Lindsey v. J.A. Martinez, 90 N.M. 737 (CA, 1977). The defendant must be present for the arraignment, at the time of the plea, and at every other stage of the trial unless waived," Id. at 741; Beverly v. Beverly 2000-NMCA-097, ¶10.. The defendant will also have a right to counsel. Perhaps most important, punishment for criminal contempt can subject a defendant to double jeopardy if he is later prosecuted for the offense that gave rise to the contempt citation. Criminal contempt charges do not, however, generally invoke a right of trial by jury, State v. Powers, 1998-NMCA-133, ¶25, 126 N.M. 114, 967 P.2d 454.

Criminal contempt creating Double Jeopardy. When a court holds a respondent in contempt for violating an Order of Protection, the possibility exists that the contempt sanction may preclude a subsequent criminal prosecution for the same act on the grounds that it constitutes double jeopardy. NM Constitution, Article II, §15; U.S. Constitution, Amendment V.

In State v. Gonzales, 1997-NMCA-039, 123 N.M. 337, the Court of Appeals held that where the defendant had been convicted on a misdemeanor contempt charge for violating a domestic violence order of protection and sentenced to jail time, double jeopardy did not bar prosecution of the defendant for the offenses of stalking and harassment stemming from the same conduct that gave rise to the contempt. In a later case, State v. Powers, 1998-NMCA-133, the court held that where a provision in an order of protection prohibiting "battery in any manner" contained all the elements of the statutorily-defined offense of battery, a criminal prosecution for battery following a contempt proceeding for violating the protection order violated the defendant's right against double jeopardy. The test applied by the court in each case was whether the criminal charge included any element not contained in the previous contempt offense. State v. Powers, 1998-NMCA-133, ¶17; State v. Gonzales, 1997-NMCA-039, ¶¶14-15.

A subsequent prosecution after incarceration for criminal contempt arising from violation of an order of protection is therefore not barred so long as the elements of criminal prosecution differ from those of the contempt conviction. State v. Powers, 1998-NMCA at ¶¶17-18. This decision also urges that trial courts "exercise extreme care in identifying which of the provisions of the restraining order form the basis for the contempt charge, and what elements are required to show that these provisions were violated." Id., ¶33. For example, "in some cases, a violation of the 'no contact' or 'stay away' provision in a restraining order may be sufficient to support a contempt charge without precluding a subsequent prosecution [e.g. for battery] on double jeopardy grounds." Id. Moreover, a judge may defer sentencing on a contempt citation while a criminal case is pending, and then reconsider imposing sentence after the outcome of the criminal case is known.

Civil Contempt
Examples of Civil Contempt. Civil contempt will usually be imposed when the defendant had an affirmative obligation to perform some act and failed or refused to do so. Common examples include paying support, delivering a child for a court-ordered visit, or vacating or turning over property. In these cases, the purpose of the contempt sentence is generally to enforce compliance: the respondent "can end the sentence and discharge himself at any moment by doing what he had previously refused to do." State v. Helms, 108 N.M. 772, 774 (1989). Nevertheless, if respondent is jailed, the contempt proceeding is civil only if the contemnor can get out of jail at any time by complying with the court's order. Id. Conversely, it is possible for the contemnor to be incarcerated without bond in civil contempt, because the constitutional requirement of release on bond only applies to criminal incarceration.

3.4 Full Faith and Credit for Protection Orders Under the Federal Violence Against Women Act
Every state in the United States and many tribal jurisdictions have enacted statutes authorizing courts to issue civil protection orders against domestic violence. The federal Violence Against Women Act ("VAWA") requires New Mexico courts to give full faith and credit to qualified protection orders issued in other states and in tribal jurisdictions (including the District of Columbia, and any commonwealth, territory, or possession of the United States). In general, a protection order issued in accordance with the law of the issuing state or tribe is entitled to full faith and credit under the VAWA. Enforcement measures upon violation are governed by the law of the enforcing jurisdiction. This section details the criteria that a protection order must meet to be entitled to full faith and credit under the VAWA, and describes how New Mexico courts are to enforce qualifying orders issued in other jurisdictions.

Note: The Violence Against Women Act also makes it a federal criminal offense to cross a state line or enter or leave Indian country with the intent to violate a protection order. 18 USC 2262.

3.4.1 When Is a Protection Order Entitled to Full Faith and Credit?
Under 18 U.S.C.§2265, a sister state or tribal protection order must be given full faith and credit if: 1) the issuing court had jurisdiction under the laws of its state or tribe; and, 2) the person subject to the order had notice and a reasonable opportunity to be heard. The statute provides:

"(a) Any protection order issued that is consistent with [18 U.S.C.§2265(b)] by the court of one State or Indian tribe (the issuing State or Indian tribe) shall be accorded full faith and credit by the court of another State or Indian tribe (the enforcing State or Indian tribe) and enforced as if it were the order of the enforcing State or tribe.

"(b) A protection order issued by a State or tribal court is consistent with this subsection if -

(1) such court has jurisdiction over the parties and matter under the law of such State or Indian tribe; and

(2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State or tribal law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights."

New Mexico courts must enforce tribal protection orders and orders from courts of other states as provided in 18 U.S.C. §2265 and under state law, §40-13-6 D.

The examples in the following discussion illustrate the application of the jurisdictional and due process criteria of 18 U.S.C. §2265.

The Issuing Court "Has Jurisdiction Over the Parties and Matter" Under the Law of Its State or Tribe.
A sister state or tribal protection order will be entitled to full faith and credit under the VAWA only if the issuing court had personal and subject matter jurisdiction under the laws of its own jurisdiction. In New Mexico, the question of personal jurisdiction has been of particular concern where one of the parties to a protection order is a member of an Indian tribe. An exhaustive treatment of the laws governing jurisdiction over tribal members and tribal lands is beyond the scope of this Benchbook. Due to the complexity of the law in this area, the authors recommend that New Mexico judges consult with local tribal judges to resolve questions regarding the jurisdiction of each court. For a general discussion of the relationships between state, tribal, and federal laws, see Resnik, Multiple Sovereignties: Indian Tribes, States, and the Federal Government, 79 Judicature 118 (1995), and Feldman and Withey, Resolving State-Tribal Jurisdictional Dilemmas, 79 Judicature 154 (1995).

Several examples of problems that are likely to arise include:

Tribal court orders of protection.

• Under federal law, a tribe has civil and criminal jurisdiction over Indians from its own tribe and Indians from other tribes. Hence, a tribal order of protection issued against an Indian of the same or another tribe meets the jurisdictional requirements of federal law. However, the Violence Against Women Act requires that the tribe have personal jurisdiction over the respondent according to its own tribal law in order for a tribal protection order to receive full faith and credit. See 18 U.S.C. § 2265(b)(1). Consequently, a respondent may argue that the tribal order of protection should not be given full faith and credit by the state court because the tribe did not have personal jurisdiction under its own law. The difficult question then becomes how the state court should evaluate whether the tribe had personal jurisdiction under the tribe’s own laws.

  • A tribal court order of protection issued against a non-Indian should receive full faith and credit in so far as it imposes civil penalties (as long as the tribe had personal jurisdiction over the non-Indian and provided the non-Indian adequate notice and an opportunity to be heard). However, as a matter of federal law, tribal courts do not have subject matter jurisdiction to impose criminal sanctions against non-Indians. Therefore, any criminal sanctions included in a tribal court order of protection against a non-Indian should not be enforced by the state.

Orders from other state courts.

• An order of protection issued under New Mexico law against a person with whom the petitioner has had a continuing personal relationship is enforceable in the courts of another state, even though the enforcing state does not itself authorize orders of protection to unrelated persons
• Similarly, a court that is asked to enforce an order from another state protecting a child in the household must look to the law of the issuing state, not the enforcing state, to see if such coverage is authorized.

The Restrained Party Has Been Given "Reasonable Notice and Opportunity to Be Heard."
The second criterion for full faith and credit under the VAWA is that the party subject to the protection order be given "reasonable notice and opportunity to be heard...sufficient to protect that person's right to due process." 18 U.S.C. §2265(b)(2). The statute further provides that where the protection order is issued ex parte, "notice and opportunity to be heard must be provided within the time required by State or tribal law, and in any event within a reasonable time after the order is issued...."

The VAWA's notice requirement has particular significance for New Mexico ex parte emergency orders of protection or temporary orders of protection, which are enforceable within New Mexico immediately upon a judge's signature without regard to service or notice to the respondent. See §§40-13-3.2 A and 40-13-4. Despite their immediate efficacy in this state, New Mexico's ex parte emergency orders of protection will not be entitled to full faith and credit in other jurisdictions until the respondent has received notice and an opportunity to be heard under New Mexico law.

3.4.2 What Types of Orders Are Entitled to Full Faith and Credit?
The "protection orders" governed by the VAWA full faith and credit provision are defined as follows:

"'[P]rotection order' includes any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including temporary and final orders issued by civil and criminal courts (other than support or child custody orders) whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil order was issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection." 18 U.S.C. §2266.

The definition set forth in 18 U.S.C. 2266 encompasses the following types of orders:

• Protection orders issued by tribal courts against non-Indians so long as they carry only civil sanctions for violation.
• Orders protecting persons other than the petitioner, if the law of the issuing jurisdiction permits the court to include such persons in its protection orders.
• Conditional release orders issued in a criminal proceeding for the protection of a named individual.
• Orders of protection issued by New Mexico courts.

Each of these types of orders will be eligible for full faith and credit if the issuing court had personal jurisdiction over the respondent and the respondent had notice and an opportunity to be heard.

Although 18 U.S.C. §2266 specifically excludes orders for support or child custody from the VAWA’s full faith and credit provisions, other federal and state laws give full faith and credit to child support and child custody provisions contained in an order of protection. See discussion below. Some mutual protection orders are also ineligible for full faith and credit under the VAWA. The following discussion explains.

Orders for Child Custody or Support
The VAWA's definition of "protection order" specifically excludes "support or child custody orders." This exclusion is a potential source of confusion, since protection order statutes in jurisdictions outside New Mexico may specifically permit courts to make provision for emergency support and custody within their civil protection orders, as New Mexico does. §40-13-5(A)(2).

It is not yet settled whether the VAWA's exclusion of "support or child custody orders" extends to provisions for emergency support and custody contained within civil protection orders. Some legal scholars conclude that Congress did not intend to address enforcement of such provisions in the VAWA, while others believe that such provisions are entitled to full faith and credit when issued for safety purposes. See Goelman, et al, Interstate Family Practice Guide: A Primer for Judges, §§306-307 (ABA Center on Children & the Law, 1997). In any event, there are other federal full faith and credit provisions applicable to support and child custody orders that apply regardless of whether the order in question was issued in the context of a domestic relations or a protection order proceeding.

• The Parental Kidnapping Prevention Act, 28 U.S.C. 1738A, requires states to accord full faith and credit to sister state custody orders that meet certain jurisdictional and notice criteria. Under 28 U.S.C. §1738A(b)(3), the description of custody orders entitled to full faith and credit is broad enough to include custody provisions contained within civil protection orders. The statute defines "custody determination" as "a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications."
  
  Note: The Mexico Child Custody Jurisdiction Act, §§40-10A-101 et seq., generally requires New Mexico courts to recognize and enforce other states’ custody orders. §40-10A-313. The Act defines a “custody proceeding” broadly enough to include civil protection order actions: “’child custody proceeding’ means a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for . . . protection from domestic violence in which the issue may appear.” §40-10A-102(4).
  
  
• 28 U.S.C. §1738B requires states to accord full faith and credit to sister state and tribal support orders made consistently with its provisions. This statute's definition of "child support order" is broad enough to include support provisions contained within a protection order. 28 U.S.C. §1738B(b) states that "child support order" means:

"(A) ...a judgment, decree, or order of a court requiring the payment of child support in periodic amounts or in a lump sum; and

"(B) includes - (i) a permanent or temporary order; and (ii) an initial order or a modification of an order."

Note: The Uniform Interstate Family Support Act ("UIFSA"), §40-6A-101, also requires New Mexico courts to recognize valid child support orders issued by other states and Indian tribes. A "support order" under the UIFSA could include a support provision contained within another state's protection order. The Act defines "support order" as "a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney fees, and other relief." §40-6A-101 (21).

Mutual Orders
Limitations on the VAWA's full faith and credit requirement arise where a court issues a mutual protection order against both parties, and the respondent was the petitioner's spouse or intimate partner. 18 U.S.C. §2265(c) provides:

"(c) 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."

The portion of a mutual order restraining the respondent is entitled to full faith and credit regardless of whether the restraint on the petitioner meets the foregoing criteria. "Spouse or intimate partner" is defined in 18 U.S.C. §2266 to include:

"(A) a spouse, a former spouse, a person who shares a child in common with the abuser, and a person who cohabits or has cohabited with the abuser as a spouse; and

"(B) any other person similarly situated to a spouse who is protected by the domestic or family violence laws of the State in which the injury occurred or where the victim resides."

Note: New Mexico law requires the court, upon a finding that domestic abuse has occurred, to "enter an order of protection ordering the respondent to refrain from abusing the petitioner or any other household member," §40-13-5(A). Presumably that means that a counter-petition would have to be filed and supported by evidentiary findings to restrain petitioner as counter-respondent through a mutual order of protection.

3.4.3 How Does the Enforcing Court Give Full Faith and Credit to Another State or Tribal Order?
If a protection order from another state or a tribe meets the jurisdictional and notice requirements of the VAWA's full faith and credit provision, this order must be enforced "as if it were the order of the enforcing State or tribe." 18 U.S.C. §2265(a). This means that a New Mexico court enforcing a foreign jurisdiction's protection order should impose on the respondent the same sanctions for violation that are available for violations of orders of protection under New Mexico law. These sanctions may differ from those that would have been imposed in the issuing jurisdiction.

A foreign state order of protection that would be enforceable only as criminal contempt in its state of issuance may be enforceable in New Mexico as a misdemeanor, §40-13-6(E).

3.4.4 Facilitating Enforcement of New Mexico Orders of Protection in Other Jurisdictions
In light of the federal requirements for full faith and credit described above, New Mexico courts can facilitate enforcement of New Mexico Orders of Protection in other jurisdictions by taking the following steps:

• Help the parties to better understand the scope of the order by informing them orally and in writing that the order is enforceable in all U.S. states and territories, and on tribal lands.
• Use only the standard forms approved by the Supreme Court.
• Complete the forms using language that is explicit, unambiguous, comprehensive, and legible.

Clearly cite the statutory authority under which the order is issued. This citation - coupled with a recitation of the relevant jurisdictional facts - will assist the enforcing court in its assessment of the order under the VAWA jurisdictional criteria.

3.4.5 Members of the Armed Forces and Civilian Employees of the Department of Defense
See Department of Defense Directive, no. 5525.9, 12-27-88, Implementing National Defense Authorization Act, P.L. 100-456 and 10 U.S.C. 814 (Department of Defense shall cooperate with courts and state and local officials in enforcing court orders).

3.5 Trial Issues
The restrained party may not defend against a contempt citation by relying on any action or failure to act by the petitioner such as provocation or withholding of visitation rights by the petitioner. The respondent can seek relief through the court for any alleged violation without violating stay-away or no contact orders, for example

The U.S. Attorney General's Task Force recommended that the court admonish the offender that any contact with the protected party, even if initiated by the protected party, may constitute a violation of the no-contact order. Attorney General's Task Force on Family Violence, Final Report, U.S. Department of Justice, Washington, D.C.: 1984, at 43.

3.6 Sentencing Contemnors for Violations of Protection Orders

"For civil protection orders to deter batterers from further abusing their partner, respondents must believe that the judge will impose a meaningful penalty for any violation.

A jail sentence may also help motivate police officers to adopt and to maintain a policy of arresting batterers who violate protection orders. Many police officers said one of their reasons for not arresting violators is that prosecutors and judges do not seem to take these cases seriously by following up arrests with swift and meaningful sanctions."

N.I.J. C.P.O. Study at 58.

3.6.1 Standards for Determining the Length of a Sentence

"In imposing punishment for contempt, the following matters are to be considered by the trial court: the seriousness of the consequences of the contumacious behavior, the public interest in enforcing a termination of defendant's defiance, and the importance of deterring future defiance. . . . The punishment imposed should be reasonably related to the nature and gravity of the contumacious conduct."

Case v. State, 103 N.M. 501, 502 (1985).

3.6.2 Checklist of Aggravating or Mitigating Circumstances

• The offender's criminal history; any current probation terms, etc.
• Nature of victim's injuries
• Use of dangerous or deadly weapon
• Threats made by offender to harm self, victim, or others
• History of abusive behavior
• Previous violations of court orders
• Presence of children and others living in the home who may be affected by the abuse
• Drug, alcohol and mental health evaluations where appropriate
• Vulnerability of victims (e.g., elderly, handicapped, youthful, etc.)
• Victim impact statement

3.6.3 Sentencing When There is a History of Prior Contempt Findings

Options for the court in sentencing a contemnor with a history of violations include:

• Enhanced penalties, including period of custody
  §40-13-6(E) provides for a misdemeanor sentence for any first violation of an order of protection. But the Act then provides an escalating sentence for second and subsequent offenders:
  "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." Id.
  
• Full restitution
  The Act mandates the court to award full restitution to the petitioner for the violation of the order of protection. §40-13-6(F). Note, however, that violation of an order of protection is no longer a prerequisite for the issuance of restitution, id.
• Treatment for batterer
  The court is required to order the person convicted of a violation of an order of protection "to participate in and complete a program of professional counseling, at his own expense, if possible. §40-13-6(F).

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