N.M. Stat. § 40-13-5 (2026)

not affected; mutual order of protection.
   A. Upon finding that domestic abuse has occurred or upon stipulation of the parties,
the court shall enter an order of protection ordering the restrained party to:

       (1)    refrain from abusing the protected party or any other household member;
and

      (2)    if the order is issued pursuant to this section and if the court also
determines that the restrained party presents a credible threat to the physical safety of
the household member after the restrained party has received notice and had an
opportunity to be heard or by stipulation of the parties, to:

           (a) deliver any firearm in the restrained party's possession, care, custody or
control to a law enforcement agency, law enforcement officer or federal firearms
licensee while the order of protection is in effect; and

         (b) refrain from purchasing, receiving, or possessing or attempting to
purchase, receive or possess any firearm while the order of protection is in effect.

    B. In an order of protection entered pursuant to Subsection A of this section, the
court shall specifically describe the acts the court has ordered the restrained party to do
or refrain from doing. As a part of any order of protection, the court may:

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

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

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

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

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

       (6)    order the restrained party to participate in, at the restrained party's
expense, professional counseling programs deemed appropriate by the court, including
counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of
controlled substances; and
       (7)    order other injunctive relief as the court deems necessary for the
protection of a party, including orders to law enforcement agencies as provided by this
section.

   C. The order of protection shall contain notice that violation of any provision of the
order of protection is a violation of state law and that federal law, 18 U.S.C. 922, et seq.,
prohibits possession of firearms by certain persons.

     D. If the order of protection supersedes or alters prior orders of the court pertaining
to domestic matters between the parties, the order shall say so on its face. If an action
relating to child custody or child support is pending or has concluded with entry of an
order at the time the petition for an order of protection was filed, the court may enter an
initial order of protection, but the portion of the order dealing with child custody or child
support will then be transferred to the court that has or continues to have jurisdiction
over the pending or prior custody or support action.

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

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

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

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

History: Laws 1987, ch. 286, § 5; 1993, ch. 109, § 3; 2001, ch. 15, § 1; 2008, ch. 40, §
7; 2019, ch. 253, § 3.

                                      ANNOTATIONS

The 2019 amendment, effective July 1, 2019, revised the required contents of an order
of protection; in Subsection A, added Paragraph A(2); in Subsection B, in the
introductory clause, added "In an order of protection entered pursuant to Subsection A
of this section"; deleted former Subsection B; added a new Subsection C and
redesignated former Subsections C through G as Subsections D through H,
respectively.

The 2008 amendment, effective July 1, 2008, changed "petitioner" to "protected party"
and "respondent" to "restrained party" and added Subsections D and G.
The 2001 amendment, effective July 1, 2001, inserted Paragraphs A(5) and (6), which
add provisions for financial remedies and counseling programs for victims of domestic
abuse, and renumbered the remaining paragraph accordingly.

The 1993 amendment, effective June 18, 1993, in Subsection A, in the first sentence of
the introductory paragraph, deleted "an act of" preceding "domestic abuse" and deleted
"household member" following "respondent", substituted "the acts" for "in clear
language understandable to the respondent the behavior" in the second sentence of the
introductory paragraph, made a minor stylistic change in Paragraph (2), and inserted
"require the parties" in Paragraph (4); added the second sentence in Subsection C; and
added the second sentence in Subsection E.

Petitioners are not required to provide a showing of imminent danger in seeking
an order of protection. — The district court erred in adopting the hearing officer's order
dismissing petitioner's petition for order of protection and domestic abuse on the basis
that petitioner failed to demonstrate that respondent posed an ongoing and present
danger, because the plain language of NMSA 1978, § 40-13-5(A) requires the district
court to enter an order of protection upon a finding that domestic abuse has occurred.
There is no language that indicates a petition must state why a petitioner needs the
order, or even language that requires proof of a petitioner's need for that order. Nguyen
v. Bui, 2023-NMSC-020.

Child custody. — As far as child custody matters are concerned, the Family Violence
Protection Act is to be used only in emergency situations and as a temporary remedy
that is limited in scope. Lucero v. Pino, 1997-NMCA-089, 124 N.M. 28, 946 P.2d 232,
cert. denied, 123 N.M. 626, 944 P.2d 274.

Expiration of custody order. — Issue of whether an order transferring child custody
under the Family Violence Protection Act should have been declared void under Rule 1-
060B (4) NMRA was moot since the order had expired. Lucero v. Pino, 1997-NMCA-
089, 124 N.M. 28, 946 P.2d 232, cert. denied, 123 N.M. 626, 944 P.2d 274.

Respondent’s conduct constituted "severe emotional distress". — Where
respondent appealed the district court’s finding that respondent violated an order of
protection that prohibited her from contacting petitioner and from committing further acts
of abuse or threats of abuse against petitioner, evidence that respondent posted on the
internet numerous photos of petitioner snorting prescription drugs, which were
accompanied by statements claiming that petitioner was a "junkie", a "drug-addled
imbecile" and a "drug-addicted hypocrite", and testimony from petitioner regarding the
adverse effects, including nightmares and thoughts of suicide, that respondent’s
conduct had on petitioner’s life, there was sufficient evidence to support a finding that
respondent’s online activity caused petitioner severe emotional distress. Best v. Marino,
2017-NMCA-073, cert. denied.

Order of protection did not violate respondent’s due process rights. — Where
respondent was found in criminal contempt for her violation of an order of protection,
which expressly prohibited respondent from engaging in conduct that would cause
petitioner to suffer severe emotional distress, and where respondent repeatedly posted
on the internet photos of petitioner snorting prescription drugs, implying that petitioner
had a substance abuse problem, accompanied by statements claiming that petitioner
was a "junkie" a "drug-addled imbecile" and a "drug-addicted hypocrite", respondent’s
due process rights were not violated, because the order provided respondent with
sufficient notice that her online activity would constitute a violation. Best v. Marino,
2017-NMCA-073, cert. denied.

Order of protection’s restriction of respondent’s ability to access the internet was
unconstitutionally overbroad. — Where the district court issued an order of protection
based on respondent’s sustained pattern of stalking and harassment of petitioner, the
court’s restriction of respondent’s ability to access the internet was a clear prior restraint
on respondent’s first amendment rights and was not the least restrictive means by
which to address the harm in this case, and therefore the district court’s restriction was
unconstitutionally overbroad and violated respondent’s first amendment rights. Best v.
Marino, 2017-NMCA-073, cert. denied.

Double jeopardy. — Where provision in order prohibiting domestic violence (OPDV)
prohibiting "battering in any manner" contained all elements of the statutorily defined
offense of battery, a criminal prosecution for battery following a contempt proceeding for
violating the OPDV violated defendant's right against double jeopardy. State v. Powers,
1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, cert. denied, 127 N.M. 392, 981 P.2d
1210.