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  • Protective Order vs. Restraining Order: Is There a Difference?

    Posted on by JACK MKHITARIAN

    People often use the terms “protective order” and “restraining order” interchangeably, and with good reason because the two are quite similar. But they are different. The most significant difference is that New Mexico issues protective orders in domestic cases where the individuals involved are related or household members—but a judge will issue a civil restraining order if a party needs protection when the parties are not in a domestic relationship.

    If you have been served with either, it is important to understand the difference between a protective order and a restraining order. 

    What Is a Protective Order?

    A protective order, also known as an order of protection or protection order, is used in domestic violence cases and issued by a judge in family court to protect an individual from potential harm or harassment. The order may include conditions such as:

    • Maintaining a certain distance from the person seeking protection,
    • Refraining from contacting the protected individual or other specified individuals, and
    • Prohibiting harassment.

    A protective order violation is a serious offense with legal consequences.

    In New Mexico, an order of protection is called a domestic violence order of protection and is typically granted to household members in response to incidents of domestic abuse.

    What Is a Restraining Order?

    In New Mexico, a restraining order is called a civil harassment restraining order. Much like a protective order, a restraining order is a legal injunction issued by a court that prevents one party from engaging in specific actions against another party. However, restraining orders are used in cases where the involved persons are not in any type of domestic relationship. These orders usually specify certain actions the restrained party must avoid to maintain the status quo and protect an individual from potential harm, harassment, or unwanted contact.

    Restraining orders are issued in various situations, such as harassment cases, property disputes, or landlord-tenant disagreements. 

    Protective Order vs. Restraining Order

    Protective and restraining orders serve the same purpose of providing legal protection to people who feel threatened or harassed. These legal measures are designed to do the following.

    Prevent Harm

    The primary goal of both orders is to prevent harm or the threat of harm to the protected party. This can include physical violence, verbal abuse, or any behavior that creates a hostile or unsafe environment.

    Establish Boundaries

    Both orders establish clear boundaries between the protected and the restrained parties. This separation is necessary to ensure the safety of the protected party and reduce the risk of further conflict.

    Do I Have to Consent to a Protective or Restraining Order?

    Issuing a protective or restraining order doesn’t require the consent of the restrained party. These orders are requested by individuals who feel threatened and are granted based on the evidence presented to the court. The legal system prioritizes the safety and well-being of injured parties, and the court can issue such an order even if the restrained party disagrees.

    How Long Does a Protective or Restraining Order Last?

    The duration of protective and restraining orders varies based on the circumstances and the specific terms outlined by the court. In New Mexico, the length of a protective or restraining order depends on the type of order.

    • Emergency or ex parte order of protection. These are requested by law enforcement and issued when there is an immediate danger of domestic abuse. These orders last 72 hours.
    • Temporary protective or restraining order. The protected party requests these orders on an expedited basis so they can get immediate protection before a final and more permanent order is issued. These orders last up to 10 days.
    • A permanent order. These can be issued after the 10-day hearing occurs, and if child custody or support is involved, these orders last up to six months. Other injunctive orders continue until a party asks for a modification or cancellation of the order. 

    At the hearing, both parties can present evidence. After hearing all evidence, the judge decides if a more permanent order is warranted.

    What Are the Consequences of Violating a Protective or Restraining Order?

    Violating the terms of a protective or restraining order is a serious offense with consequences that may include criminal charges, civil contempt, and extension or modification of the protective order. 

    In New Mexico, the first offense violation of a restraining order can result in imprisonment for up to one year. If the restrained party violates the order again, they will be required to serve 72 consecutive hours in jail. Those who continue to violate the order will face a third-degree felony charge, which carries a fine of $5,000 and up to three years of incarceration.

    What Happens If the Protected Party Violates the Temporary Protection Order?

    Often, the order of protection only prevents the restrained party from contacting the protected party. The protected party contacting you is not a violation of a restraining order unless a mutual order of protection is in place. However, the protected party contacting the restrained party may demonstrate that the protected party does not actually need an order of protection.  

    How Does New Mexico Enforce These Orders?

    Law enforcement agencies actively monitor and respond to reports of order violations. They have the authority to:

    • Arrest individuals who violate the terms of the order;
    • Conduct investigations and collect evidence of violations;
    • File criminal charges against offenders;
    • Protect the victim, including escorting them to court or their residence; and
    • If a violation is suspected or reported, the restrained party may be arrested, and the legal consequences outlined earlier may be pursued.

    Violating a protective or restraining order can have serious consequences, so it’s important to understand the terms of your order.

    Facing a Protective or Restraining Order?

    Don’t navigate these legal waters alone. These orders can be confusing and complex, with severe consequences for unintentional violations. That’s why having a legal expert on your side is crucial. The New Mexico Criminal Law Offices can help. We’re a team of experienced lawyers in Albuquerque who know these orders inside and out. We’ll walk you through the specific terms, explain your rights and options, and fight for your best interests. Our firm has been dedicated to providing exceptional legal representation and safeguarding our clients’ rights since 1997. Contact us today for a free case evaluation.