A Manual for Domestic Violence Attorneys & Advocates Helping Survivors Obtain Protection Orders
This manual is intended to serve as an educational tool 1 for attorneys and advocates working with pet-owning domestic violence survivors in New Mexico. We hope that this step-by-step approach simplifies the inclusion of pets in protection orders, allowing survivors to take control of their lives and escape abuse along with their pets. Edited by Dave Tilford, AWI.
Advocates and attorneys play a crucial role in ensuring that the individual seeking a protection order (petitioner) understands and exercises their rights to include their pets in protection orders. There are four crucial steps to this process:
- As early as possible, ask the petitioner about any pets, service animals, therapy animals, or any other animals who may live in the home.
- Familiarize yourself with the state’s protection order laws. In New Mexico, the Family Violence Protection Act2 applies.
- If there has been animal abuse or a threat of animal abuse, gather evidence to present at the hearing (see “Gathering Evidence” section below).
- Help the petitioner understand what relief is available to protect the animal, and ensure that the petitioner’s requested relief is included in any temporary or extended order.
Ask About Pets
The first step is to ask, during the initial conversation, about the presence of pets or other animals in the home. It is common for petitioners with pets not to volunteer that they have a pet. They may assume there are no resources or protections for their pets and therefore believe it is pointless to raise the issue. In addition, under the stress of the circumstances they may forget to mention pet concerns. The following are some sample questions to ask:
- Does an animal—a pet, service animal, or support animal—live in your home?
- Has your abuser ever harmed your pet or threatened to harm your pet?
- How did the animal abuse or threat affect you?
- Where is your pet right now?
- Is your pet safe?
- Do you want to ask that the court grant you custody of your pet?
- Do you want to ask that the court order your abuser to stay away from your pet?
- Do you have anything that might help us prove that the abuser has threatened or hurt the animal, e.g., veterinary bills or records, photographs or eyewitnesses?
It is important to recognize the overall significance of asking about pets. Being able to present information about how the abuser has treated animals can be a valuable tool to illustrate the extent of the abuser’s controlling and violent behavior. Knowing whether a pet is involved may help not only the pet but also other abused parties. Many individuals experiencing domestic violence may decide not to leave due to fear of leaving a pet behind, and addressing such concerns increases the likelihood that they will escape an abusive situation.
Discuss Resources for Pets
Reassure the petitioner that you will work with them to develop a safety plan for them, their family, and their pet. Does the individual intend to stay with friends or family members, but cannot take their pet? Are they moving into temporary housing or a domestic violence shelter that does not accept pets?
Explain that there are safe havens for pets of domestic violence victims in many communities. Safe havens are sheltering services available in an area that help individuals who are experiencing domestic violence place their companion animals out of harm's way so that they may seek safety for themselves.
Safe havens operate differently from community to community. Some rely on networks of foster care homes or are allowed to use the additional kennel space of a local humane society or veterinarian. In some cases, domestic violence shelters house victims and pets together, while some house only the pets on site. Depending on the local arrangement, family members may be able to visit their pets while they are in safekeeping. Confidentiality of the pet’s location is highly guarded in order to protect the pets and their family members.
Refer the petitioner to the Animal Welfare Institute’s Safe Havens Mapping Project. This is a directory, searchable by zip code, of sheltering services for domestic violence victims and their pets. About 12 percent of safe havens nationwide offer co-housing so that pets can stay with the human victims. Those that offer this are noted in the directory.
Advise the petitioner to do the following:
- Keep on hand the phone number of the nearest 24-hour emergency veterinary clinic
- Establish ownership of the pet by creating a paper trail (e.g., obtain a license, have veterinarian records put in the petitioner’s name)
- Keep emergency provisions for the pet. Pack a bag for the pet that includes the following:
- documents of ownership (receipts from adoption or purchase of pet, license to establish ownership, receipts for animal purchases)
- health documents (veterinary or vaccination records)
- ID and rabies tag, if a dog or cat (these will also help establish ownership)
Finally, in some circumstances where the animal and client are separated, such as one involving a visit to the emergency room, the advocate or attorney may need to ensure that the animal is safe. Following a domestic violence call, the animal may be taken into custody by animal control and need to be claimed and transferred to safety later.
New Mexico Domestic Abuse Personal Protection Order Laws
To secure a domestic abuse protection order in New Mexico, one should petition the court under the Family Violence Protection Act (Chapter 40, Article 13 NMSA 1978). Under this law, "domestic abuse" means any incident by a household member against another household member resulting in any of the following:
- physical harm
- severe emotional distress
- bodily injury or assault
- a threat causing imminent fear of bodily injury by any household member
- criminal trespass
- criminal damage to property
- repeatedly driving by a residence or work place
- telephone harassment
- harm or threatened harm to children
Under an order of protection, a court in New Mexico can order an abuser to stay away from the victim and the victim’s children, cease all contact with the victim, move out of the house, and/or obey orders concerning property. It can also prevent the abuser from owning weapons or ammunition. The order can also award temporary custody, visitation, and child support. A protection order generally lasts for one year but can be extended upon request. (A temporary child custody order that is part of a protection order expires in six months.)
In some parts of New Mexico, a district court can issue an emergency order of protection ex parte (with no prior hearing and without the abuser’s knowledge) after a law enforcement officer requests one from the court. Such an order is effective when a judge signs it and expires after 72 hours or at the end of the next judicial day, whichever is latest.
Throughout New Mexico, a district court can issue a temporary order of protection (again, with no prior hearing and without the abuser’s knowledge) if, based on an affidavit or petition filled out by the alleged victim, the judge believes that domestic abuse has occurred.
To obtain a temporary order of protection, petitioner must complete and submit in person to the court Form 4-961 (protection order petition) and Form 4-961A (service of process information). There is also an optional Form 4-961B if the petitioner wishes to keep their address and telephone number concealed.
Once a temporary protection order is issued, a hearing for a permanent order of protection may be held within 10 days. At the hearing, both petitioner and the alleged abuser (respondent) are allowed to present evidence.
Including Pets on the Protection Order Form
On the petition form 4-961, the petitioner must show that they have a qualifying domestic relationship with respondent, i.e., that the respondent is their current or former spouse, someone with whom they have a child, another family member, someone with whom they have an ongoing relationship, or someone who has stalked or sexually assaulted them. Second, the petitioner must include specific information on the petition regarding the abusive conduct.
Even though New Mexico has no statute explicitly allowing for animal abuse to be admitted as a “prior bad act,” past animal abuse should still be included on the petition. According to the New Mexico Judicial Education Center’s New Mexico Domestic Violence Benchbook, “attacking pets”3 is among the behaviors that constitute domestic violence. With specific reference to abuse of children, “threatening to harm or abandon pets, sometimes after newly acquiring them” is a form of indirect abuse4, and “custody of pets may be addressed in the order [of protection].”5 Prior acts of animal abuse are relevant to demonstrate how the respondent’s actions placed the petitioner in fear of violence, as well as how the respondent’s conduct fits into the cycle of abuse. Animal abuse should be deemed relevant under NM Stat § 40-13-2(D)(2) as, among other things, (b) severe emotional distress and (f) criminal damage to property. Petitioner should therefore provide detailed information regarding prior abusive conduct, including any prior acts of animal abuse.
There are two areas on petition form 4-961 where information about pet abuse can be noted:
- Domestic Abuse: Item 5(A) asks the petitioner to describe the nature of the domestic abuse. Harm to one’s pet could be included in the blank space beside “Other abuse.”
- Requests to the Court: Item 6(I) asks the petitioner to indicate “other relief that is necessary to resolve this domestic abuse problem.” Petitioner should check the box next to “I” and indicate in the blank space provided what relief is requested. In this space, the petitioner may specifically request that the respondent have no contact with petitioner’s pet(s) or other animals.
Gathering Evidence for the Hearing
Fact-Gathering Questions to Ask the Petitioner
Before completing the petition, an attorney or advocate should ask the petitioner the questions listed in the section “Ask About Pets” above. The answers to these questions will help the evidence-gathering process for the hearing and offer the court a more comprehensive scope of the circumstances.
If the respondent has threatened to harm either the petitioner’s animal or the respondent’s own animal, ask the petitioner what the respondent specifically said. The statement should be admissible under evidence rules as an admission by a party opponent. Ask where and when the statement occurred, and if someone else may have heard the threat (e.g., a neighbor, another occupant of the home, or someone else present). Have the petitioner describe the circumstances, including the topic of conversation and body language.
If the respondent physically hurt the pet, gather as many details as possible. In particular, find out if the animal needed veterinary care. If so, collect any evidence of the visit and consider if a subpoena of the animal hospital is appropriate. Either way, find out if any photos were taken and, if the abuse was recent, help the petitioner record photo evidence.
In addition to the fine details, be sure to capture the bigger picture of abuse. Have the petitioner describe the series of events that led up to the incident of abuse as well as any past instances of conflict. What does the petitioner believe motivated the abuse? How did the petitioner react to the abuse? How did the respondent act afterward? Did the abuse serve as an effective controlling behavior? For example, did the abuse prevent the petitioner from leaving the home or going somewhere?
Remember, it is extremely important that the court understand how the animal abuse fits into abusive behavior generally. Not everyone recognizes the value of pets, so being able to demonstrate with evidence that the respondent used the pet as a means to control the client is crucial to convincing the court of the role animal abuse plays in domestic violence.
There are several common pieces of evidence that you may want to introduce:
- Statements made by the respondent
- Veterinary records
- Photographs of injuries
- Evidence of prior animal abuse
- Prior convictions for animal abuse
- Testimony of a police officer
- Testimony of a veterinarian
Check New Mexico’s rules of evidence6 to develop a response to possible objections to their admissibility.
Federal Domestic Violence Law: Paws Act
Although the process of obtaining a protection order is a civil matter, not a criminal one, violation of a protection order once it is in place is a crime under state law, punishable by fines and/or imprisonment. In some circumstances, it will also be a crime under federal law. In 2018, the provisions of the Pet and Women Safety (PAWS) Act were signed into law as part of the federal farm bill. The PAWS Act added language to Title 18, Chapter 110A of the US Code7—which pertaining to interstate domestic violence and interstate stalking—that heightens protection for animals in situations involving protection order violations and stalking.
Interstate violation of a protection order occurs when someone crosses state lines (or by force, coercion, duress, or fraud causes another person to cross state lines) with the intent to engage in conduct that violates or would violate a protection order’s prohibition “against violence, threats, or harassment against, contact or communication with, or physical proximity to, another person or the pet, service animal, emotional support animal,8 or horse of that person.”9
Interstate stalking occurs when someone engages in conduct intending to kill, injure, harass, or intimidate another person (or place that person under surveillance for such purposes), so that it either
- causes the person to have reasonable fear of death or serious bodily injury to themselves; their immediate family members, their spouse or intimate partner; or their pet, service animal, emotional support animal, or horse, or
- “causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress” to the person, their immediate family members, or their spouse or intimate partner,
AND such behavior occurs when the stalker is either
- traveling in interstate or foreign commerce,10 or
- using “mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce.”11
It is important to emphasize that the latter provision means that stalking conducted via mail or computers—whether or not physical travel is involved—constitutes interstate stalking because use of the US mail and the electronic devices themselves involves activities that venture beyond state lines.
Federal authorities, not local and state law enforcement officers, are tasked with prosecuting violations of federal law. However, the Department of Justice recommends reporting such crimes, especially in an emergency, to the local authorities. The local district attorney will refer appropriate cases to a US attorney’s office. Victims and advocates also may wish to contact their local US attorney’s office or the Federal Bureau of Investigation directly. Each US attorney’s office has an Office of Violence Against Women contact person to take referrals under the interstate stalking law. Click on the links below for office locations:
Forms and Resources
New Mexico Official Forms and Resources
- New Mexico Courts: Domestic Violence Forms — This page provides links to all necessary forms, including bilingual versions in English and Spanish. Links to specific English language forms are listed below:
- New Mexico Courts: information on domestic violence and protection orders
New Mexico Organizations
- The Animal Welfare Institute’s Safe Havens Mapping Project: a state-by-state, zip-code searchable listing of safe haven programs
- WomansLaw.org: New Mexico Domestic Violence Protection Orders
- Red Rover Safe Escape grants: helps families with pets safely escape domestic violence together
1. The information provided in this manual should not be considered legal advice.
4. Id. at section 4.1
5. Id. at section 4.2.1