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Navajo Rules for Domestic Violence Proceedings These rules were approved by the Judicial Conference of the Navajo Nation in Resolution No. 92AUG01 on August 21, 1992, and by the Judiciary Committee of the Navajo Nation Council in Resolution No. JCO-13-92 on October 2, 1992. They were adopted by the Navajo Nation Supreme Court on June 25, 1993. They became effective on October 2, 1993. Please note that the Domestic Abuse Protection Act of 1993 applies. Note that these rules were adopted prior to DAPA. Where these rules and DAPA conflict, DAPA applies.
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I. GENERAL PROVISIONS
RULE 1.1 Authority.
These rules of pleading, practice, and procedure for domestic violence proceedings in the district, family and peacemaker courts of the Navajo Nation are adopted pursuant to 7 N.T.C. § 601(a).
RULE 1.2 Purposes.
These rules shall provide speedy, informal, fair, and adequate procedures to remedy acts of domestic violence. They will be applied liberally to provide maximum protection for victims of domestic violence, and to make victims whole for past acts of violence.
RULE 1.3 Law Applied.
Pursuant to 7 N.T.C. § 204, the law which applies to domestic violence matters includes, but is not limited to, the following principles:
(a) Equal Rights Clause. 1 N.T.C. § 3 prohibits the denial or [abridgment] of rights under the law on account of sex; violence on the basis of sex and sexual harassment as a tort shall be remedied under these rules.
(b) Tort Law. Domestic or family violence is a tort, and the court may apply principles of tort law to determine whether there should be remedy for assault, battery, the intentional infliction of emotional distress, or any other outrageous conduct, as measured by the values and moral standards of the Navajo People.
(c) Equity. The court may apply principles of equity to grant relief and enter protective orders (including temporary restraining orders, preliminary injunctions and permanent injunctions) by balancing the likelihood of future injury and personal hardship to the parties, and using standards of fairness and substantial justice to regulate the conduct of the parties.
(d) Peace Bonds. The court may apply the common law of peace bonds to require that persons give a pledge under oath to refrain from future acts of domestic violence, and provide a bond or other surety to assure the pledge is kept.
(e) Criminal Law. The court may impose reasonable conditions of release pending trial and impose conditions or release pending trial and impose conditions of sentence pursuant to 17 N.T.C. §§ 1817(c) and 220(c). The court may enter any order against a defendant to make a victim of a crime of domestic violence whole and to assure protection from future acts of domestic violence.
(f) Navajo Common Law. The court may apply principles of Navajo common law, including but not limited to the prohibition against the use of force, coercion and intimidating; talking things out; family and group discussions; and planning or an appropriate resolution of the underlying causes of domestic violence.
RULE 1.4 Informal Proceedings.
Proceedings under these rules shall be swift and informal, and the court may use relaxed rules of evidence and procedure to determine whether it is more likely than not that an act of domestic violence has occurred and provide a proper remedy to prevent future acts of domestic violence. Relaxed rules may not be used to determine guilt in a criminal action, but hearsay and relaxed proceedings may [be] used to determine conditions of release and a sentence following conviction by plea or trial.
RULE 1.5 Definition of Domestic Violence.
For the purposes of these rules, domestic violence is any act, which injures, intimidates or places another in fear of future injury. It includes, without limitation, any act of physical violence, harassment, sexual harassment, or the intentional infliction of emotional distress against a person in a special relationship. Those relationships include, without limitation, spouses, children, family members, clan members, people living together in the same household or immediate residence area, individuals in affectionate relationships, and co-employees. People who deserve special protection include pregnant women, children, the elderly, handicapped or disabled persons, and those who cannot protect or care for themselves. This definition shall be liberally construed to provide protection against conduct, which injures or intimidates another in a close, special, or continuing relationship.
The foregoing definition of domestic violence under general principles of American law shall be supplemented by the Navajo common law definition and principles; that there are special reciprocal relations among spouses and family members, and that where the parties fall out of harmony, they must proceed in a cautious way with each other (hozhogo). Any definition of domestic violence must be read in such a way as to identify instances of disharmony and the means to restore hozho.
II. GENERAL PROCEDURES
RULE 2.1 Jurisdiction of the District Court.
The district court has jurisdiction to enter appropriate orders in actions to punish crime under 7 N.T.C. § 253(1), including conditions of release or continued release pending trial, and any sentence or condition of sentence pursuant to 17 N.T.C. §§ 1817(c) and 220(c). In addition, the district court may grant relief in any civil action pursuant to 7 N.T.C. § 253(2) where the issues of the cause include any act of domestic violence.
RULE 2.2 Jurisdiction of the Family Court.
The family court shall have jurisdiction over original actions for civil relief in domestic violence matters. In addition, the family court may enter appropriate orders to deal with domestic violence in conjunction with divorces, child custody proceedings, child protection matters, domestic relation cases, probates, land disputes, or any other action pending before the court.
RULE 2.3 Peacemaker Court.
Parties may initiate original proceedings in the peacemaker court, and the district and family courts may refer all or any part of a domestic violence matter tot he peacemaker court. The peacemaker may recommend any order to effectively deal with acts of domestic violence and the underlying causes of a violent relationship, including but not limited to, recommendations for sentence, restitution, a divorce, protective orders, nalyeeh, or any other appropriate remedy. The appropriate court shall enter final orders. By way of illustration, a criminal matter involving domestic violence may be referred to the peacemaker court. Any recommendation regarding a sentence, including restitution, will be made to the district court, and any recommendation regarding a divorce or other domestic relations or child welfare remedy will be made to the family court.
RULE 2.4 Forum Shopping.
The district and family judges in any judicial district may, upon consultation, enter appropriate orders to transfer or consolidate domestic violence cases, or aspects of domestic violence cases, to prevent forum shopping or provide an appropriate remedy. By way of illustration, where it appears in a criminal action that a divorce or child protection is an appropriate aspect of the case, the action may be transferred to a docket in the family court. As appropriate, the district and family court may conduct independent and simultaneous proceedings.
RULE 2.5 Standing.
Any person who is directly affected by an act of domestic violence, next friends, and persons or entities with the zone of injury of an act of domestic violence may petition a court for relief or participate in criminal proceedings.
(a) Victims. Any victim of an act of domestic violence may petition the family court for civil relief or seek relief in district court criminal proceedings.
(b) Next Friends. Any persons may petition a court for civil relief or participate in criminal proceedings as a next friend to the victim, including family members, attorneys or counsel, guardians, or agencies or entities, which serve the affected person. By way of illustration, a family member may seek relief on behalf of a relative, child or elder; the Navajo Nation Division of Social Services, Navajo Housing Authority, or any social services program or shelter, may seek relief on behalf of a client or program participant.
(c) Affected Persons or Entities. Any person or entity who or which is affected by domestic violence may seek relief. By way of illustration, family members who are within the zone of injury of domestic violence or who are threatened by an individual committing any act of domestic violence may seek relief. Any Navajo agency or entity and any private social service agency or battered women’s shelter, which finds its program operations are affected by any act of domestic violence, may petition for relief on its own behalf. By way of illustration, where the Navajo Housing Authority finds that the peace and quiet enjoyment of residents is affected by acts of domestic violence, it may seek relief on behalf of neighboring residents. A battered women’s shelter may seek relief for clients or workers.
RULE 2.6 Standard of Proof.
The civil standard of proof shall apply to proceedings under these rules. Where the preponderance of the evidence shows that it is more likely than not that a past act or pattern of domestic violence has occurred, and that a victim of domestic violence needs protection, the court shall grant appropriate remedies. This rule does not apply to final determinations of guilt in criminal case, but does apply to pretrial release and sentencing proceedings prior to a determination of guilt.
RULE 2.7 Place of Occurrence.
The place of the occurrence of an act of domestic violence is irrelevant, because these rules provide for future remedies. Any person who is properly before the court and within its jurisdiction may petition for relief, regardless of where the act of domestic violence may have occurred. By way of illustration, an individual who has been subjected to domestic violence outside the territorial jurisdiction of the Navajo Nation, who temporarily or permanently moves to the Navajo Nation, may petition the court for appropriate relief. A person who commits an act of domestic violence within the territorial jurisdiction of the Navajo Nation, but who goes beyond its territory, is subject to the courts jurisdiction.
RULE 2.8 Spousal Immunity.
There is no spousal immunity in civil or criminal actions to remedy domestic violence.
RULE 2.9 Spousal Privilege.
Spousal communications are not privileged in any criminal or civil action to remedy domestic violence.
RULE 2.10 Hearsay.
There is a limited exception to the hearsay rule in domestic violence cases, as follows:
(a) Criminal Actions. The court may receive and consider hearsay evidence to impose conditions of release or sentence. Orders of release or sentences may be based upon police reports, home studies, affidavits, written submissions to the court or other writings, but the defendant shall have an opportunity to receive a copy of any written submission to rebut its contents. A defendant may rebut any information received by the court by proffer or assertion, or through counsel.
(b) Civil Actions. The court may receive and consider hearsay evidence for the issuance of ex parte orders or to frame orders or decrees.
(c) Use Immunity. Any statement or declaration by a person in a civil action or criminal pretrial proceeding may not be subsequently used for purposes of determining guilt in a criminal prosecution. Criminal defendants shall have use immunity for any statement given in a prior civil or criminal proceeding. This rule does not apply to actions for perjury, making false statements, or contempt of court, or to information provided following a knowing and intelligent waiver of the right to remain silent.
(d) Scientific Literature. The court may take judicial notice of reliable scientific literature on domestic violence.
(e) Other Acts Against A Victim. The court may consider a prior act against a victim, by any person, to fashion relief.
RULE 2.11 Intoxication as a Defense.
There shall be no defense in any proceeding under these rules that a person was intoxicated or incapable of controlling his or her actions due to alcohol or drug abuse. A court may consider a pattern of alcohol or drug abuse to frame appropriate orders of relief.
RULE 2.12 Pro Se Proceedings and Counsel.
Any person within the meaning of Rule 2.5 may appear or proceed without the assistance of counsel, pro se or in propria persona.
(a) Criminal Proceedings. A victim of domestic violence may, in person, by counsel or by a representative, participate in proceedings to determine conditions of release of a criminal defendant or to fix the sentence of a person found guilty of an offense.
(b) Civil Proceedings. Where the Office of the Chief Justice provides standard forms for civil proceedings, a petitioner may file an action and proceed without counsel.
(c) Appointment of Counsel. A court may appoint counsel for a party pro bono publico in any proceeding under these rules.
RULE 2.13 Procedure for Pro Se Hearings.
Hearings involving parties who proceed pro se shall be informal, and shall promote free discussion of the relevant facts. Petitioners may relate facts, subject to questions by the court. Respondents or defendants may relate relevant facts, subject to court inquiry, and may suggest questions to the court to pose, in its discretion. The court may direct the course of proceedings and the submission of testimony or evidence to receive all relevant information. The presiding judge may question parties and witnesses. The court may hear any relevant evidence, but shall not base any judgment, order or finding of fact upon evidence, which is clearly unreliable or impermissible.
RULE 2.14 Remedies in General.
All remedies required by the district or family court, or suggested by the peacemaker court, shall be reasonably related to the facts before the court and shall be designed to grant all relief and protection, which is reasonably necessary to prevent domestic violence in the future, or to remedy past acts of domestic violence.
RULE 2.15 Specific Remedies.
The family and district courts may order, and the peacemaker court may suggest, any of the following remedies when entering orders at any stage of criminal or civil proceeding:
(a) Order to Refrain from Acts of Abuse. The court shall order the respondent or defendant to refrain from any act of violence, coercion, harassment or abuse to a victim of domestic violence, and any child, any elderly person or any member of a household, residence area, family or clan affected by an act of domestic violence.
(b) Oath. The court may require a respondent or defendant to take an oath to refrain from any act of domestic violence and to fully comply with the terms and conditions of any judgment, protective order, condition of release or condition of sentence.
(c) Possession of Residence. Without regard to title, ownership or right of possession, the court may award the exclusive right to possess and occupy any residence or household, including adjacent areas, to a petitioner, victim, child, guardian, or a custodian of a child. The court may order a respondent or defendant to vacate any premises or pay for a residence or household for a petitioner, victim, child or custodian of a child.
(d) Exclusion. The court may enter an order to require a respondent or defendant to leave and remain away from any reasonable defined geographic area or premises. Any person who is not a member of the Navajo Tribe of Indians may be excluded from the territorial jurisdiction of the Navajo Nation pursuant to 17 N.T.C. § 1902.
(e) Avoidance. The court may require a respondent or defendant to avoid named individuals or classes of individuals, including the petitioner, victim, family members, relatives, clan members, employers or co-employees. The order may require that there be no communication by means of personal contact, contact through intermediaries, or contact by telephone, electronic transmission or mail.
(f) Child Custody and Support. The court shall award temporary or permanent child custody, provide for visitation, fix child support or set maintenance payments.
(g) Disposition of Property. The court may restrain the parties from transferring, concealing, encumbering or disposing of the property of a victim or petitioner and to account for any disposition of property.
(h) Security or Bond. The court may require a respondent or defendant to (1) post a bond, (2) deposit monies or pledge property, or (3) obtain sureties or guarantors to assure the performance of any order or condition. Upon the violation of an order or condition, the court may require payment of the amount of bond or surety or the transfer of property to the victim or petitioner, or to the Navajo Nation. The court shall have jurisdiction to compel payment or the transfer of property by sureties or guarantors.
(i) Counseling or Treatment. The court may require parties to seek, cooperate with and complete any program of counseling or treatment, which is appropriate to the situation, and to pay any required fee for such services.
(j) Refrain from the use of Alcohol or Drugs. The court may require any party to refrain from the use of alcohol or drugs within or without the territorial jurisdiction of the Navajo Nation.
(k) Restitution. The court may require restitution or Navajo common law nalyeeh to make any victim whole for a past act of domestic violence, including orders for the transfer of property or time payments to compensate for actual damages.
(l) Reporting or Supervision. The court may require any party to report to the court, a member of the court probation and parole office, social worker, peace maker, or other official or program, or that the party be under the supervision of any person or program.
(m) Costs or Fees. The court may require a respondent or defendant to pay any costs or fees, including court fees, fees of a peacemaker or counselor, or fees charged by a treatment program or appropriate service.
(n) Masters or Commissioners. The court may appoint a member of the Navajo Nation Bar Association as a master or commissioner to conduct hearings, propose orders, or draft orders on behalf of the court, and require any party to pay for the services of a master or commissioner.
(o) Persons with Disabilities. The court may enter orders to protect persons with handicaps or disabilities, including the appointment of a guardian or conservator, orders for the protection and accounting of property, or other guardianship relief.
(p) Other Relief. The court may, upon the motion of a party, suggestion of a victim or the motion of the court, grant any other relief allowed by law for the protection of persons or property against acts of domestic violence.
RULE 2.16 Sanctions for Violations of Orders.
A court may impose any lawful sanction for a violation of a judgment, order or condition entered pursuant to these rules, including but not limited to:
(a) Criminal Contempt. The violation of a judgment, order or condition in a civil or criminal action may constitute an indirect criminal contempt.
(b) Civil Contempt. The court may jail or incarcerate an individual to compel that person to carry out a judgment, order or condition imposed by the court.
(c) Interfering with a Witness or Judicial Proceedings. The court may refer violations of judgments, orders or conditions to the Office of the Prosecutor for prosecution under 17 N.T.C. § 477(a)(2), disobedience or resistance to the lawful order, process or other mandate of a court.
(d) Exclusion. Any individual who is not a member of the Navajo Tribe of Indians may be excluded from the Navajo Nation pursuant to 17 N.T.C. § 1902 for disobedience of a judgment, order or condition.
(e) All Writs. Pursuant to 7 N.T.C. § 255, the court may issue any writ or order to enforce a judgment, order or condition to the full extent of the court’s jurisdiction.
RULE 2.17 Telephonic and Facsimile Filings.
Any judge having jurisdiction over a civil or criminal proceeding may receive and act upon petitions, applications or motion which are made by means of telephonic or facsimile (“FAX”) transmission, and may enter orders by telephonic or facsimile transmission. Telephonic orders shall be directed to an official of the Office of the Prosecutor or officer of the Navajo Police, and any order which bears the certification of receipt of any such official or officer shall be prima facie evidence of the validity of the order when served. The originals of petitions, applications, motions and orders shall be filed with the clerk of court as soon as reasonable delivery may be affected.
RULE 2.18 Service.
Any officer of the Navajo Police, court official, member of the Office of the Prosecutor or person appointed by the court may serve process in domestic violence proceedings. Process may be served upon persons outside the territorial jurisdiction of the Navajo Nation by a person appointed by the court, by State law enforcement officials, or persons authorized to serve process by the law of the jurisdiction. Rule 4 of the Navajo Nation Rules of Civil Procedure shall also apply to process under this rule.
RULE 2.19 Service of Copies of Orders to Public Officials.
The clerk of court shall provide copies of court orders to the division commander or commanding officer of the Navajo Police district, station or substation having jurisdiction over the area of residence of any person who is the subject of a protective order, and to the prosecutor of the Office of the Prosecutor having responsibility for the area.
RULE 2.20 Confidentiality of Address of Petitioner.
The court shall not require any petitioner to disclose his or her address or present whereabouts in any document served upon a respondent, and any information provided to the court regarding the address or whereabouts of the petitioner shall remain confidential.
RULE 2.21 Mutual Orders.
The court shall not, except for good cause and exceptional circumstances, enter mutual orders against both a petitioner and a respondent. By way of clarification, abusive individuals tend to manipulate orders entered against a victim. Mutual orders should be confined to situations where they are clearly necessary to prevent mutual violence.
RULE 2.22 Denials of Relief.
Any order, which denies relief in a criminal or civil matter, shall be in writing, and shall state the reason or reasons for denying relief.
RULE 2.23 Stays of Appeal.
No order, which grants specific relief, may be stayed on appeal without good cause and a written statement of reasons for the stay.
III. PROCEEDINGS IN FAMILY COURT
RULE 3.1 Original Actions.
The family court may, upon the petition of a party, enter protective orders to remedy any act of domestic violence. A protective order is a command directed to any person to remedy past acts of domestic violence and to prevent future acts of domestic violence. When it appears that it is more likely than not that a past act of domestic violence has occurred, and there is a reasonable likelihood that domestic violence may occur in the future, the court shall enter protective orders which are reasonably related to the conduct and necessary to prevent future acts of domestic violence.
RULE 3.2 Petition and Contents.
A petition for a protective order must contain a short statement of facts, which shows that an act of domestic violence within the meaning of Rule 1.5 has occurred. The Office of the Chief Justice may issue standard forms for domestic violence petitions.
RULE 3.3 Verification.
All petitions must be verified by the oath of the petitioner. The oath shall be to the effect that the petitioner has read the petition, and that the facts and matters in the petition are true, except for matters alleged on information and belief. A petitioner may take the oath before any notary public, a clerk of court, or a member of the Navajo Nation Bar Association. Any person who intentionally or knowingly makes a false statement in a petition may be prosecuted for criminal contempt of court, resisting or obstructing an officer under 17 N.T.C. § 370(a)(3), or making a false entry in a public record under 17 N.T.C. §§ 374(a)(1), (2), or (3).
RULE 3.4 Initial Action Upon Petition.
Upon the filing of a petition it shall immediately be presented to the presiding family court judge or to any judge having jurisdiction within the judicial district. The judge shall immediately review the petition for sufficiency. The court may, without hearing, issue a temporary order of protection or withhold issuing an order and set a hearing upon the petition within 72 hours.
RULE 3.5 Temporary Order and Citation.
Where it appears from the petition that it is ore likely than not that an act of domestic violence has occurred, the court may enter a temporary order of protection which shall remain in effect until a hearing can be held on the petition. The temporary order shall contain a citation to the named respondent, requiring the respondent to appear before the court at a stated time and place for a hearing on the petition.
RULE 3.6 Hearings.
A hearing on the petition shall be held within fifteen (14) working days from the date of issuance of the temporary order and citation, excluding Saturday, Sundays and holidays. Any hearing may be continued upon the request of a respondent, on condition that the original order, or additional orders, shall remain in force pending a hearing. A respondent may apply for relief from an order prior to a hearing upon notice to the petitioner and a reasonable opportunity to be heard.
RULE 3.7 Priority of Hearings.
Domestic violence proceeding shall have priority on the docket of the family court.
RULE 3.8 Failure of Respondent to Appear.
Where a respondent fails to appear at a hearing, and the file shows service of a copy of the petition and order upon the respondent, the court may hear testimony, receive evidence, and enter appropriate orders.
RULE 3.9 Failure of Petitioner to Appear.
Where a petitioner fails to appear at a hearing, the court should inquire about the reasons for nonappearance, and enter an order to continue the hearing or dismiss the petition, without prejudice. Upon a continuance, the order may not extend beyond the initial fifteen (15) working day period unless the petitioner makes a further petition to the court.
RULE 3.10 Bifurcation of Hearings.
The court may, if it is necessary to conduct an additional hearing to determine complete relief, enter partial orders following an initial hearing and bifurcate issues for further proceedings.
RULE 3.11 Preliminary or Permanent Protective Orders.
Upon the receipt of evidence and testimony in a hearing upon a petition, the court may enter preliminary orders pending a further or final hearing, or may enter a final order if the evidence is sufficient to grant complete relief.
RULE 3.12 Filing Fees.
There shall be no filing fee for petitions in the family court.
IV. PROCEEDINGS IN DISTRICT COURT
RULE 4.1 Victim’s Rights.
Any victim of an alleged criminal offense has the right, in person or by a representative, to participate in a criminal proceeding to determine conditions of release of a defendant prior to trial, or to impose sentence upon defendant found guilty of an offense by plea or trial, where the offense constitutes an act of domestic violence.
RULE 4.2 Conditions of Release.
The court may impose any remedy allowed by Rule 2.15 as a condition of release for any criminal charge, which constitutes an act of domestic violence. Any condition must be reasonably related to the protection of a victim or the public, and conditions shall not be imposed for the purpose of preventive detention. The district court may transfer proceedings to the family court for disposition for child custody, support, visitation, maintenance or other domestic relations matters.
RULE 4.3 Conditions of Sentence.
The court may impose any remedy allowed by Rules 2.15 or 2.16 as a condition of sentence, or as an independent civil judgment.
RULE 4.4 Restitution.
The court shall require the payment of restitution, reparation or nalyeeh to any victim of an offense involving domestic violence where thee is a compensable injury. The court may enter any order, which is reasonably designed to make the victim of an offense whole for injuries, including civil judgments, time payments, the transfer of property, or the pledge of any surety or guarantor to pay a judgment or order.
RULE 4.5 Probable Cause for Criminal Arrest.
For the purpose of determining probable cause for an arrest or warrant of arrest in criminal proceedings involving domestic violence, probable cause shall be reasonable grounds for belief that a person should be arrested for the offense charged, including the existence of circumstances which would lead a reasonably prudent person to believe in a guilt of the arrested party. Probable cause which justifies an arrest without warrant includes the situation where the arresting officer has more evidence favoring a suspicion that the person is guilty of a crime than evidence against the suspicion, with some room for doubt. It includes facts and circumstances within an officer’s knowledge, which provide trustworthy information sufficient to cause a person of reasonable caution that an offense has been or is being committed. Suspicion or belief, unsupported by facts and circumstances, is insufficient. The court may consider the following facts and circumstances, including hearsay information, to determine whether probable cause is present for an arrest for an offense, which involves domestic violence.
(a) Report to Police. Any prompt personal or telephonic report to a police officer that an act of domestic violence has occurred, where the report is confirmed by a witness to the event, or surrounding circumstances support the conclusion that the act has occurred.
(b) Appearance of Victim. Bruises, wounds, or abrasions on the body of a victim; torn clothing, disarray in dress or appearance, or other signs of violence; crying, emotional outbursts or spontaneous utterances of plain; and any surrounding indication that any offense has been committed.
(c) Condition of Premises. Any condition of premises, which confirms a reasonable belief that an offense has been committed, including broken furniture, thrown objects, property damage, or disarray of the premises.
(d) Complaints by Neighbors. Complaints by neighbors or loud noises, fighting, screaming, epithets, obscenities, or other indicators of violent behavior.
(e) Acts of Children and Infants. Crying, expressions of fear, or any inappropriate condition for a child.
(f) Spontaneous Utterances. Any spontaneous utterance by a defendant which confirms a report or suspicion of the offense, including running from the scene, evasive conduct when questioned as to identity, or outbursts against others.
(g) Intoxication. Any sign of intoxication coupled with other indications of fighting, intimidation of others, threatening or coercion.
RULE 4.6 Ancillary Civil Proceedings.
The district court may grant ancillary relief, as permitted by Rule 2.15 or 2.16, in any civil action pending before the district court. The court may also make appropriate transfers of proceedings to the family court, peacemaker court or any body having jurisdiction over an issue before the court.
V. PROCEEDINGS IN PEACEMAKER COURT
RULE 5.1 Original Jurisdiction.
The peacemaker court shall, at the option of a petitioner or victim, have original jurisdiction in domestic violence matters in accordance with the Navajo Peacemaker Court Rules. Parties shall be advised of the availability of Peacemaker Court remedies.
RULE 5.2 Referrals.
The peacemaker court may accept referrals or transfers of any matter pending before a family or district court. The entire case or any portion of a case may be referred, including recommendations for a sentence or civil remedy, post-judgment Counseling, a family gathering or any other purpose which is reasonably related to dealing with domestic violence.
RULE 5.3 Protection of Victims.
No victim of domestic violence shall be forced to engage in peacemaking against his or her will, and peacemaking shall terminate if a victim says or indicates that the procedure is intimidating, threatening or otherwise harmful. The peacemaker shall at all times make reasonable provisions for the protection of victims, including requesting the attendance or police, family members or court officials, and conducting proceedings in places which are not threatening or remote from immediate assistance.
RULE 5.4 Sensitivity to Victim Needs.
Peacemakers should be sensitive to the fact that victims of domestic violence have often been intimidated or brutalized for long periods of time, and that they may withdraw from discussion of acts of violence or too readily agree to things to appease an abuser.
RULE 5.5 Alternatives.
The peacemaker should explore alternatives and encourage discussion of solutions to problems, which underlie acts of domestic violence. The peacemaker should encourage counseling through resources available in the community, and consider recommendations to the family court or a divorce, separation, or other appropriate remedy.
RULE 5.6 Relation to the Parties.
A referring court should consider the usefulness of appointing a peacemaker who is a relative by blood or clan to the parties.
RULE 5.7 Family Meetings.
Peacemakers should encourage the participation of family and clan members in peacemaking of domestic violence matters.
RULE 5.8 Consultation.
A peacemaker may consult with any appropriate court official, counselor or community resource regarding the matter or the parties, and may seek an order of the district or family court to require the parties to pay for legal or other services required to make a proposed order to the court to conclude peacemaking.
RULE 5.9 Peacemaker Fees.
Notwithstanding any provision of the Peacemaker Court Rules, a district or family judge may set or approve any reasonable fee for the services of a peacemaker, and provide for the payment of that fee by any person.
RULE 5.10 Court Review.
The district or family court shall review final recommendations by a peacemaker, and peacemakers shall make appropriate reports to a supervising court.
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