Tribe: Pueblo of Laguna
Section 7-4-9. Civil orders of protection.
A. Eligible petitioners.
(1) Any victim of domestic abuse may file a petition for an order of protection if either the petitioner or respondent, or both, are enrolled members of the Pueblo of Laguna, nonmember Indians, or non-Indians who are residents at the Pueblo of Laguna.
(2) A parent, guardian, or other custodial representative may file a petition for an order for protection on behalf of a child or minor identified in section 7-4-5 or any person identified in section 7-4-5 may file on behalf of a child or minor identified in section 7-4-5 against a person who commits an act of domestic violence.
B. Standard forms; clerical assistance; fee waivers.
(1) The Clerk of the Pueblo Court shall provide to a person requesting an order of protection a standard form for petitions for orders of protection.
(2) The Clerk of the Pueblo Court shall provide clerical assistance in filling out the forms and filing the petition.
(3) The victim may also obtain a standard form for a petition for a protective order and receive assistance in completing the form from the Laguna Family Services’ Advocates or the office of the prosecutor.
(4) Any fee required by the Pueblo of Laguna Pueblo Court for filing such civil petitions is waived based on the special need for the relief.
C. Orders for protection; generally. If a petition for an order of protection alleges a present danger of domestic abuse to petitioner, based on an allegation of a recent incident of actual abuse or threat of abuse, the court may:
(1) Without a notice or hearing, immediately issue of an order of protection ex parte, granting all relief necessary to protect the petitioner as described in subsection 7-4-9D.
(2) Upon notice, issue an order of protection or modify an order of protection after a hearing, whether or not the respondent appears.
D. Temporary ex parte orders of protection.
(1) The court may issue a written protection order ex parte when a petitioner states to the court that they are in immediate danger of domestic abuse and the court finds reasonable grounds to believe the petitioner is in immediate danger.
(2) The court may grant the following relief without notice and hearing in an order for protection issue ex parte:
(a) Prohibit the respondent from threatening to commit or committing acts of domestic abuse against the petitioner or any designated family or household member;
(b) Prohibit the respondent from harassing, intimidating, stalking, contacting, telephoning or communicating with the alleged victim verbally or in writing, either directly or indirectly through family members, relations by marriage, friends, and co-workers;
(c) Prohibit the respondent from using or possessing a firearm or other weapon specified by the court;
(d) Prohibit the respondent from possession or consumption of alcohol or controlled substances;
(e) Order possession and use of essential personal belongings, and direct the Pueblo Law Enforcement Officer to accompany or supervise the petitioner’s or respondent’s removal of personal belongings;
(f) Order respondent to vacate from the residence of the petitioner regardless of ownership;
(g) Order respondent to stay away from the residence, school, place of employment, or any place visited frequently by the petitioner and any other named family or household member;
(h) Order respondent to not violate any laws in any federal, state or Pueblo jurisdiction;
(i) Determine temporary custody of any minor children; and
(j) Order such other relief as it deems necessary to provide for the safety and welfare of the petitioner and person protected under section 7-4-5.
(3) An ex parte order of protection is effective until a hearing is held regarding the necessity for a permanent order of protection.
(4) Upon issuance of an ex parte order of protection, the court shall:
(a) Except as otherwise provided in subsection D.(2) above, if the court issues an order for protection ex parte and the court provides relief pursuant to subsection D.(2) above, the court shall set a date for a permanent order for protection hearing regarding the ex parte order for protection within ten (10) calendar days.
(b) Cause the ex parte order of protection, together with notice of hearing, to be served immediately on the respondent and petitioner by Laguna Law Enforcement or Court Bailiff.
(c) If personal service cannot be completed, the court shall notify the respondent by mail, at the last and best known address of the respondent and/or petitioner, of the date and time of the hearing for a permanent order for protection.
(d) If applicable, the respondent shall be served upon arraignment. The civil court clerk shall be responsible for forwarding a copy of the ex parte order to the jail for service.
(e) Make reasonable efforts to ensure that the order for protection is understood by the petitioner and the respondent, if present.
(f) Transmit, by the end of the next business day after the order is issued, a copy of the order for protection by the Laguna Law Enforcement, the Office of the Prosecutor, the Director of Laguna Family Services, and the Director of Social Services if a child is involved.
(g) Transmit a copy of the order to the appropriate entity for placement in the Pueblo Registry.
E. Permanent order for protection; modification of orders; relief available after hearing; duties of the court; duration of order.
(1) If it appears from a petition for an order or a petition or a petition to modify an order for protection that domestic violence has occurred or a modification of an order for protection is required, the court may:
(a) Upon notice, issue an order for protection or modify an order after a hearing whether or not the respondent appears.
(2) The court may grant the following relief in an order of protection after notice and hearing was given to the respondent, and whether or not the respondent appears:
(a) Grant the relief available in accordance with subsection 7-4-9D.(2);
(b) Specify arrangements for respondent’s visitation of any minor child(ren) and, if necessary to protect the petitioner and the child(ren), require supervised visitation or deny visitation;
(c) In specifying all visitation arrangements, the court shall consider the respondent’s overall lifestyle, especially as it pertains to alcohol and other chemical use;
(d) Order respondent to pay attorney’s fees;
(e) Order the respondent to do any of the following that may apply:
(i) Pay rent or make payment on the mortgage on petitioner’s residence;
(ii) Pay for the support of the petitioner and if the respondent is found to have a duty to support the petitioner;
(iii) Pay for the support of a minor child if the respondent is found to have a duty to support the minor child and/or reinforce any court ordered child support payments;
(iv) Reimburse the petitioner or other person for expenses associated with domestic abuse, including, but not limited to, medical expenses, counseling, the repair or replacement of damaged property, and the expense of any temporary housing; and
(v) Pay any other costs incurred in bringing the action.
(f) Order the petitioner to attend appropriate domestic abuse counseling; and
(g) Order respondent to attend domestic violence classes at the domestic violence program for abusers.
(3) The court shall:
(a) Cause the order to be delivered to the Laguna Law Enforcement or Court Bailiff for service on the respondent;
(b) Make reasonable efforts to ensure that the order of protection is understood by the petitioner and respondent, if present; and
(c) Transmit, by the end of the next business day after the order is issued, a copy of the order of protection to Laguna Law Enforcement, the Office of the Prosecutor, the Director of Family Services and the Director of Social Services if a child is involved.
(4) The Pueblo Law Enforcement shall provide for expedited service of orders of protection.
(5) Permanent orders of protection shall be effective for a minimum period of three (3) months. However, the court may, in its discretion, impose a longer period of time for the order to be effective.
F. Service of permanent order of protection; duty of court when order for protection denied.
(1) Laguna Law Enforcement shall expedite service of permanent orders for protection. If the respondent is not able to be served in person after thirty (30) days, law enforcement shall notify the civil court clerk and the permanent order for protection shall be mailed to the last and best known address of the respondent.
(2) Any person against whom a permanent order for protection is granted, and notice was sent to the last and best known address of the respondent, may petition the court to set aside the terms of that order for protection upon a showing by clear and convincing evidence that the respondent did not willingly and knowingly evade service and that there is a meritorious defense to the action. Upon such a showing, the court may grant another ex parte order to protect the petitioner and schedule a hearing within ten (10) days.
(3) If a court denies a petition for an order for protection or a petition to modify an order for protection that is requested without notice to the respondent, the court shall inform the petitioner, in person or by mail, of his or her right to request a hearing upon notice to the respondent. The court record must reflect why the request was denied.
G. Extension of order of protection.
(1) Prior to the expiration of an order of protection, the petitioner may apply for a modification to extend the time period for which the order of protection is effective.
(2) The court may, in its discretion, issue an order of protection of indefinite duration, particularly if the victim has been subjected to domestic abuse which required hospitalization, which resulted in life threatening injuries, significant disfigurement, impairment, or disability.
(3) If there has been no violation of the existing order prior to the application for extension, the court shall take this as an indication that the order of protection is effective in assuring the safety of the victim. The court may not use the fact that there has been no violation of the order of protection to determine that there is no further need for the order of protection.
H. Effect of action by petitioner or respondent on order.
(1) If an order of protection requires a respondent to stay away from the residence of a petitioner or to stay away from the petitioner, an invitation by the petitioner does not invalidate the order of protection. It shall not be a defense to a charge of a violation of an order for protection under this section that the victim consented to the violation of the order of protection by encouraging contact. A violation of an order for protection shall be considered contempt of court.
(2) In the event the petitioner and respondent should need to transfer property or custody of a child, Laguna Family Services or Laguna Social Services should be contacted for assistance with the transfer so as not to violate the protective order.
(3) Any person granted a civil or criminal order of protection from the Laguna Pueblo Court or any other court of competent jurisdiction cannot be punished for a violation of that order for protection under this chapter.
(4) An order of protection can only be dismissed by the Laguna Pueblo Court.
(5) To request that an order of protection be dismissed, a petitioner must file a motion to dismiss an order of protection with the Pueblo Court. After a hearing, the court will decide whether or not to dismiss the order.
(6) The court, in its discretion, may order the petitioner to pay twenty-five dollars ($25.00) in court costs if the petitioner repeatedly files motions to dismiss the court’s orders of protection.
I. Violation of an order of protection.
(1) Violation of an order of protection issued pursuant to the Family Protection Code shall constitute civil contempt of court.
(2) A law enforcement officer shall arrest without a warrant and take into custody any person who the officer has probable cause to believe has willfully violated an order issued pursuant to the Family Protection Code.
(3) Violators shall be held for seventy-two (72) hours without bail in accordance to subsection 7-4-8H.(1).
J. Time for filing. In determining whether to grant an order of protection, the court shall consider whether the petitioner’s fear is reasonable regardless of the lapse of time between the act of domestic abuse and the filing of the petition.
K. Mutual orders of protection. If it is clear to the court that both parties are at risk of physical injury, the court shall issue mutual protection orders against both parties.
L. Continuing duty to inform court; other proceedings; omission of petitioner’s address.
(1) At any hearing in a proceeding to obtain or amend an order of protection each party has a continuing duty to inform the court of any other civil proceedings whether in civil, family, or juvenile court, and each criminal case involving the parties.
(2) An order of protection is in addition to other available civil or criminal proceedings. A petitioner is not barred from applying for an order of protection because of other court proceedings. The court shall not delay granting relief because of a pending action between the parties. The court shall not refuse to grant or dismiss an order of protection because of the possibility, pendency, or existence of other court proceedings.
(3) A petitioner may omit their home address from all court papers, but the court shall maintain the address under sealed record, not to be accessible without petitioner’s consent.
M. Full faith and credit.
(1) A copy of an order for protection issued by another Tribal, state, county, or other court jurisdiction (hereinafter “foreign orders”), shall be given full faith and credit by Laguna Law Enforcement as having the same force and effect as one issued by the Laguna Pueblo Court.
(2) Law enforcement officers shall attempt to verify the existence and/or validity of any foreign order for protection. In the event that the victim does not have a copy of the order, the officer cannot verify the order or the copy is not clear enough to determine its validity, the officer should arrest the subject on an applicable violation of the Family Protection Code and shall assist the victim in obtaining verification of the order and/or explaining the procedure for obtaining an order for protection. The law enforcement officer shall also offer other assistance as provided in subsection 7-4-8B.
(3) Valid foreign orders for protection shall be upheld as to the conditions of the order whether or not those remedies or conditions are available through the Family Protection Code.
(4) Violations of a foreign order for protection shall be acted upon in the same manner as if the order for protection were issued by Laguna Pueblo Court and in accordance with the Violence Against Women Act, 18 U.S.C. § 2265, et seq. (2007).
(5) Law enforcement and criminal justice system personnel shall enter valid foreign orders for protection in the Pueblo Registry.
(6) Law enforcement and criminal justice system personnel shall encourage persons possessing foreign orders for protection to file the foreign order with the Pueblo Registry.
(7) Facsimile copies shall be recognized as valid.