Montana

Order of Protection Frequently Asked Questions

Authored By: Women's Law Initiative
Contents
Information

Information

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:
  1. 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.

  2. 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".

Who can get an 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.
    See the 2005 Montana Code Annotated (the laws of the State of Montana) Section 40-15-102 for more information regarding the exact requirements for eligibility for an order of protection.
  • 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.
How can an Order of Protection help me? An Order of Protection can order the abuser to:
  • 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).
An Order of Protection can also:
  • 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.
Whether a judge orders any or all of the above depends on the facts of your case. How much does it cost to get an Order of Protection? It does not cost anything to apply for an Order of Protection. Do I need an attorney to obtain an Order of Protection? No, but it is always better to have one if you can. If the abuser has an attorney you should try to get one also. In many places, local domestic violence or sexual assault victim programs can help you file for an order of protection. Free legal assistance is sometimes available in Montana for low-income people who petition for Orders of Protection. What are the steps for getting an Order of Protection?Step 1: Find the forms. The forms for filing for an order of protection are available at most local domestic violence or sexual assault victim programs. The forms are also available at most justice, city, municipal and district courts. Forms are also available online at http://www.doj.state.mt.us/resources/forms.aspStep 2: Carefully fill out the forms. Read the instructions and the petition carefully and ask questions if you don't understand something. Write your name on the line marked "petitioner." Write the abuser's name on the line marked "respondent." If you have left home and do not want the abuser to know where you are, write "confidential" in the address section of the form. Include details and dates, if you can. If you have left home and do not want the abuser to know where you are, write "confidential" in the address section of the form. Follow the instructions provided in the petition to describe your circumstances to the court.

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
Do not sign the petition. You will need to sign it in front of a notary public. Notaries can often be found in courthouses or at banks.

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.
Bring ID for yourself if you have it. Step 4: A judge will review your petition. After you finish filling out your petition and have signed it in front of a notary, bring it to the court clerk. The clerk will forward it to a judge. The judge may wish to ask you questions as s/he reviews your petition. If the judge decides you are in immediate danger of harm, s/he will issue a Temporary Order of Protection. The order will include a notice of hearing that sets a date for a court hearing to determine whether or not a Written Order of Protection should be granted. You will be given a copy of the Temporary Order of Protection and notice of hearing. If the judge does not grant you a Temporary Order and you believe that you were entitled to obtain one, contact: Step 5: Service of process The abuser (respondent) must be served with the Temporary Order of Protection so that s/he knows s/he is prohibited from certain activities and so s/he knows about the hearing and has an opportunity to appear and tell his/her side of the story. Usually, the court will send copies of the order to law enforcement for service upon the abuser, but in some areas you may have to bring the papers to law enforcement yourself. The Temporary Order of Protection will be valid when the abuser has been presented with it or has knowledge that it exists. Step 6: The Hearing A hearing will be held within 20 days from the date you file your petition. At the hearing, a judge will decide whether or not to issue a Written Order of Protection that may be effective for a specific amount of time or permanently. The abuser may request an emergency hearing before the end of the 20-day period by filing an affidavit stating that s/he has an urgent need for the emergency hearing. An emergency hearing is like a regular hearing, but it's scheduled for an earlier date. An emergency hearing must be set within 3 working days of the day the affidavit is filed. You will be notified if an emergency hearing is scheduled. You must go to the hearing, whether it is an emergency hearing or the scheduled hearing. If you do not go to the hearing, your Temporary Order of Protection will expire. If you do not show up at the hearing, it may be significantly more difficult for you to obtain an order in the future. If the abuser does not show up for the hearing, the judge may grant you a Written Order of Protection, or the judge may reschedule the hearing to a later date. At a court hearing, the judge will evaluate the abuser's past history of violence, how badly s/he hurt you or how s/he threatened you, any evidence presented at the hearing, and listen to both sides of the story.

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;

    or

  • 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)
    • intimidation
    • endangerment
    • unlawful restraint
    • kidnapping
    • arson

    or

  • 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
What should I do before the hearing to prepare my case? First, you should prepare yourself for seeing the abuser in the courtroom.

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
Some witnesses may not be able to come to court unless they are given a subpoena that commands them to appear and testify. Ask the court clerk about the subpoena process; the court may prepare subpoenas for you or you may be directed to contact an attorney for assistance. Let the judge know if the people you subpoenaed do not come to the hearing. Get evidence to help you prove your case. Evidence can include:
  • 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 more evidence you have, the greater your chances of being granted an Order of Protection. However, the judge will listen to your story even if you have no physical evidence or witnesses. Brochures are available online from Montana Legal Services Association that describe: You can also get copies by calling (800)999-4941 or (800)666-6899. Practice telling your story. You may want to make an outline or notes of the history of the violence you have experienced from the abuser. You may take notes to court with you to look at if you forget something, but if you read straight off of them, the judge may order that the abuser be allowed to see them. Tell your story in your own words, but leave out details that have nothing to do with the violence or threats of violence. Also, be specific. For example, rather than saying, "he or she hit me," tell the judge how you were hit, where on your body you were hit, and how many times. You may want to mention:
  • 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
What should I do on the day of the hearing?
  • 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.
What is the order of events in the courtroom?
  • 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.
What should I do when I leave the courthouse?
  • 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.
Within 24 hours, the clerk of court is responsible for mailing a copy of the Order of Protection and a copy of proof of service to the appropriate law enforcement agencies listed in the order.

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.