"CREDIBLE THREAT" DEFINITION

SB0090

SENATE BILL 90

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Antoinette Sedillo Lopez

AN ACT

RELATING TO DOMESTIC AFFAIRS; AMENDING THE FAMILY VIOLENCE
PROTECTION ACT; DEFINING "CREDIBLE THREAT" FOR THE PURPOSES OF
A COURT'S ISSUANCE OF A DOMESTIC VIOLENCE ORDER OF PROTECTION;
MAKING CONFORMING AMENDMENTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.
Section 40-13-5 NMSA 1978 (being Laws 1987,
Chapter 286, Section 5, as amended) is amended to read:

"40-13-5. ORDER OF PROTECTION--CONTENTS--REMEDIES--TITLE
TO PROPERTY NOT AFFECTED--MUTUAL ORDER OF PROTECTION.--

A. [
Upon finding
]
If a court hearing a petition for
an order of protection determines
that domestic abuse has
occurred, or upon stipulation of the parties, the court shall
[
enter
]
issue
an order of protection ordering the restrained
party to [
(1)
] refrain from abusing the protected party or [
any
other
]
another
household member. [
and

(2)
]
B.
If [
the
]
an
order
of protection
is issued
pursuant to
Subsection A of
this section and if the court also
determines,
or the parties stipulate
, that the restrained party
presents a credible threat to [
the physical safety of the
]
a

household member [
after
]
and that
the restrained party has
received notice and had an opportunity to be heard, [
or by
stipulation of the parties
]
the court shall order the
restrained party
to:

[
(a)
]
(1)
deliver [
any firearm
]
firearms
in
the restrained party's possession, care, custody or control to
a law enforcement agency, law enforcement officer or federal
firearms licensee
to be held
while the order of protection is
in effect; and

[
(b)
]
(2)
refrain from purchasing, receiving,
or possessing or attempting to purchase, receive or possess
[
any
]
a
firearm while the order of protection is in effect.

C. As used in this section, "credible threat" means
a condition or situation that causes a reasonable person, based
on the totality of the circumstances, to fear for the person's
physical safety or for the physical safety of another and may
be evidenced by a statement, an act or a course of conduct
attributed to the respondent and does not require the use or
threatened use of a firearm.

[
B. In
]
D.
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
]
an
order of protection, the court may:

(1) grant sole possession of [
the
]
a
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
]
for
children [
to whom
] the restrained
party [
owes
]
has
a legal obligation [
of
]
to
support;

(2)
if applicable and appropriate
, 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
]
prohibit
the restrained party
[
shall not initiate
]
from initiating
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
or community
property of the
parties except
when done
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
]
transfers
, encumbrances
[
and
]
or
expenditures made [
after
]
while
the order is [
served
or communicated to the restrained party
]
in effect
;

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

(6) [
order
]
require
the restrained party to
participate, [
in
] at the restrained party's expense,
in

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

[
D.
]
F.
If [
the
]
an
order of protection supersedes
or alters
a
prior [
orders
]
order
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
]
if a
child custody or child support
order
is in effect
at the time
the petition for an order of protection [
was
]
is
filed, the
court may enter an initial order of protection, but [
the
portion of the order
]
final determination on the issues
dealing
with child custody or child support [
will then
]
shall
be
[
transferred to
]
made by
the court [
that has or continues to
have
]
with
jurisdiction over the pending
action
or [
prior
]
the
child
custody or
child
support [
action
]
order
.

[
E.
]
G.
A mutual order of protection [
shall
]
may
be
issued only [
in cases where
]
if
both parties [
have petitioned
the court
]
file petitions for orders of protection
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
]
H. An
order issued [
under
]
pursuant to
the
Family Violence Protection Act shall
not
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
]
I. A
party may request a review
hearing to amend an order of protection. An order of
protection involving child custody or
child
support may be
modified without proof of a substantial or material change of
circumstances.

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

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