Order of Protection Frequently Asked Questions
Authored By: Women's Law Initiative
What is an Order of Protection?
An Order of Protection is a court order that is designed to stop violent and harassing behavior.
It is designed to protect you and your family members from someone who has harmed or threatened to harm you and of whom you are afraid.
For the purposes of this informational document, the term "abuser" will be used to describe the person who has harmed or threatened to harm you.There are two types of Orders of Protection in Montana:
- A Temporary Order of Protection is a court order designed to provide you and your family members with immediate protection.
It is effective for up to 20 days.
The abuser does not get prior notice that you are requesting a Temporary Order of Protection from the court.
However, if the court grants the order, the abuser will be served with a copy of the order. The order will generally also include a notice of court hearing. The court hearing will take place in the manner and for the purpose described below.
- A Written Order of Protection is a court order very similar to a Temporary Order of Protection. (Please note that a Temporary Order of Protection is also put into writing).
However, the Written Order of Protection is either granted or denied after a hearing at which both you and the abuser have the opportunity to attend and testify and the order can be made effective for any length of time determined by the judge, including permanently.
This type of order is also sometimes called a "Permanent Order of Protection".
- You can ask the court for an Order of Protection against a "family member" or "partner" who has physically hurt you or threatened to hurt you and you're afraid will hurt you. "Family member" means: mothers, fathers, children, brothers, sisters, and other past or present family members of a household. These relationships include relationships created by adoption and remarriage, including stepchildren, stepparents, in-laws, and adoptive children and parents. These relationships continue regardless of the ages of the parties and whether the parties reside in the same household.
"Partner" means: spouses, former spouses, people who have a child in common, and people who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.
- You can ask the court for an Order of Protection against anyone (whether or not that person is a family member or partner) who has:
- stalked you,
- raped you,
- sexually assaulted you,
- committed incest with you, or
- murdered your partner or family member.
- It does not matter how much time has passed between when the abuse happened and when you apply for an Order of Protection. If the abuser is in jail, you may ask for an order of protection upon his/her release.
- You may be eligible for an Order of Protection whether or not you have reported the abuse to law enforcement, charged are filed, or you participate in a criminal prosecution.
- It does not matter how old the abuser is and where s/he lives for purposes of getting an Order of Protection.
- Adults can file for Orders of Protection on behalf of minors (people under 18). Minors also can file for Orders of Protection on their own, but the court may appoint adults to represent them if they do so.
- Stop hurting you or other family members.
- Stop threatening you or other family members.
- Stop harassing or contacting you or other family members.
- Stop making threats to hurt you.
- Leave and stay away from your home (no matter who owns it).
- Stay away from you at work or other place that you frequently visit.
- Give you temporary possession of personal property such as home, car, and other essential property (no matter who owns it).
- Complete violence counseling (including chemical dependency counseling or treatment, if necessary).
- Grant temporary custody and visitation of your minor children to you and the abuser parent (Only district courts can make custody and visitation orders - check with an attorney or domestic violence or sexual assault victim program for further information).
- Prevent the abuser from having any contact with your minor child.
- Order the abuser to provide you with temporary financial assistance, if necessary.
- Provide for such other relief as you may need under the circumstances.
In the space provided:
- describe in detail how the abuser (respondent) injured or threatened you and/or your children
- Explain when and where the abuse or threats occurred
- Write briefly about the most recent incident of violence, using descriptive language (slapping, hitting, grabbing, choking, threatening, etc.) that fits your situation
- Be specific
Step 3: File your petition at the courthouse.
Orders of Protection may be filed in justice, city, municipal, or district court in the county in which you live or to which you have fled to escape abuse. All courts can include children as protected individuals in Orders of Protection when the children have been abused or threatened by the abuser.However, if the children have not been abused or threatened by the abuser and you want the court to include custody and visitation arrangements in your Order of Protection, you should file the petition in district court. If you are unsure which court to file your petition in, ask an attorney, a victim advocate at a local domestic violence or sexual assault victim program, or a clerk of court. Note: If a divorce or custody action involving you and the abuser is already filed in district court, your petition for an Order of Protection should be filed in district court. If there are no district court judges available in the county in which your divorce or custody action is pending, or if you have left that county to escape further abuse, then you may request an Order of Protection in justice, city, or municipal court in the county in which you are located. In such cases, at the time you file your petition for Order of Protection, you must provide a copy of the relevant district court documents to the court from who you are seeking protection. If you have the following information about the abuser, it is helpful to provide it to the court when filing for an Order of Protection:
- a photo.
- addresses of residence and employment.
- phone numbers.
- a description and plate number of your abuser's car.
- A local domestic violence or sexual assault victim agency;
- Montana Legal Services Association Hotline: (800) 666-6899, or (800) 999-4941.
If the abuser shows up to the hearing with a lawyer, you may ask the court for a "continuance", which means that the hearing would be rescheduled for a later date. You can ask for this extra time so that you can try to find a lawyer to help you.What will I have to prove at the hearing? You must prove that:
- You are "in reasonable apprehension of bodily injury" (meaning you are reasonably afraid of being injured) by an abuser who is your partner or family member;
- An abuser who is your partner or family member committed one of the following offenses:
- partner or family member assault
- other assault (with or without a weapon)
- unlawful restraint
- Any abuser, even if s/he is not your partner or family member:
- stalked you,
- raped you,
- sexually assaulted you,
- committed incest with you, or
- murdered your partner or family member
In addition, there are several steps you should take to fully prepare yourself for your hearing.Contact witnesses who saw the abuse or your injuries. Anyone can be a witness, including:
- a friend
- a family member
- an emergency room nurse
- a doctor
- a stranger who saw or heard the abuse take place
- a law enforcement officer
- your testimony and/or witnesses testimony, given in person on the day of the hearing
- medical reports
- police reports
- pictures of your injuries
- injuries or threats of injuries to children
- injuries or threats of injuries to pets
- household objects torn or broken by the abuser
- pictures of your household in disarray after an episode of domestic violence
- weapons used
- tapes or records of calls you may have made to 911 (call your local law enforcement to get these records)
- certified copies of the abuser's criminal record (call the court in your area to get these records)
- anything else to help you convince the judge you have suffered acts of violence and/or sexual assault and need relief and protection
- The last two incidents of violence
- The worst two incidents of violence
- Whether the defendant has a gun or other weapons
- Whether the defendant has threatened to physically hurt or kill you
- Be on time.
- Have your witnesses there and ready. If you have subpoenaed witnesses and they are not present, you should inform the judge.
- Dress neatly.
- Speak directly to the judge; s/he will understand if you feel nervous.
- Always address the judge as "Your Honor".
- Be prepared to spend all day in court. (There may be hearings before yours).
- If the abuser comes to court with a lawyer and you are not represented, ask the judge for a "continuance" so you can seek the assistance of a lawyer.
- Once your case is called, enter the courtroom and find a seat. It is your right to take another seat if the abuser sits next to you, and to receive help from court staff in keeping the abuser away from you.
- Stand when the judge enters and sit when the judge or bailiff asks you to.
- Relax and remain calm. Take deep breaths if you feel yourself getting tense. Never lose your temper in the courtroom.
- Always tell the truth.
- If you don't understand a question, just say so.
- If you don't know the answer to a question, just say so. Never make up an answer.
- At the hearing, everyone who testifies will swear to tell the truth.
- You will tell your side of the story first.
- The judge and the abuser may ask you questions. If you are afraid to answer any of them, tell the judge.
- When you are done, your witnesses will take the stand. You may ask them questions, and then the judge and the abuser will have a turn to ask them questions.
- The abuser will tell his/her side of the story. It may be very different from yours. The judge will ask him or her questions, and you may also ask him/her questions. The abuser's witnesses will take the stand. The abuser, judge, and you will all have the opportunity to ask them questions.
- The judge will make a decision after hearing both sides and considering the evidence.
- Review the Order of Protection before you leave the courthouse. If something is wrong or missing, ask the clerk to correct the order before you leave.
- Make several copies of the order as soon as possible.
- Keep a copy of the order with you at all times.
- Leave copies of the order at your work place, at your home, at the children's school or daycare, in your car, with a sympathetic neighbor, and so on.
- Give a copy to the security guard or person at the front desk where you live and/or work.
- Give a copy of the order to anyone who is named in and protected by the order.
- If the court has not given you an extra copy for your local law enforcement agency, take one of your extra copies and deliver it to them.
- Change your locks and your phone number.
However, in some areas, you may be responsible to take the order to law enforcement.
If you are unsure as to how the order will get to law enforcement, ask the clerk of court. Police officers at the scene of any alleged violation of an Order of Protection will then know about the Order and its specific terms.Ongoing safety planning is important after receiving the order. Survivors of domestic violence and/or sexual assault can do a number of things to increase their safety during violent incidents, when preparing to leave an abusive relationship, and when they are at home, work, and school. Many abusers obey protective orders, but some do not. It is important to build on the things you have already been doing to keep yourself safe. Advocates at local domestic violence or sexual assault victim agencies can assist you in designing a safety plan and can provide other forms of support. I did not get an Order of Protection. What can I do? If you are not granted an Order of Protection, there are still some things you can do to stay safe.
It is a good idea to contact one of the domestic violence or sexual assault victim agencies in your area to get help, support, and advice on how to stay safe. They can help you come up with a safety plan and help connect you with the resources you need.You may also be able to reapply for an Order of Protection if you have new evidence to show the court that abuse did occur, or if a new incident of abuse occurs after you are denied the Order. What can I do if the abuser violates the order? If you believe that the abuser has violated the Order of Protection, you should immediately call 911.
If the police arrive and believe the abuser has violated the order, they must arrest him/her and put him/her in jail.
Any Order of Protection contains the following warning:
"Violation of this order is a criminal offense under 45-5-220 or 45-5-626 and may carry penalties of up to $ 10,000 in fines and up to a 5-year jail sentence. This order is issued by the court, and the respondent is forbidden to do any act listed in the order, even if invited by the petitioner or another person. This order may be amended only by further order of this court or another court that assumes jurisdiction over this matter."When the police arrive, it is a good idea to write down the name of the responding officer(s) and their badge number in case you want to follow up on your case. M
ake sure a police report is filled out, even if no arrest is made. If you have legal documentation of all violations of the order it will help you have the order extended or modified.How do I change, extend, or cancel my Order of Protection? If you need to change, extend or cancel your Order of Protection, go back to the court clerk's office where you originally got your order.
You will have to file a new petition and you may or may not have to have a new hearing. If you no longer live in that county, you may be able to amend it where you are living now.What happens if I move? Federal law provides what is called "full faith and credit," which means that once you have an Order of Protection, it follows you wherever you go in the United States, including U.S. territories and tribal lands.
However, different courts and law enforcement agencies take different approaches to enforcing out-of-state orders.You should contact the domestic violence or sexual assault victim program, an attorney, or the prosecutor in your new area to find out what steps, if any, you should take so that your Order of Protection can be enforced. Call the court where you originally received the order to tell them your new address so that they can contact you if necessary.