Know the Laws: Montana
UPDATED May 25, 2012
A an order of protection is a civil order that protects you from someone who is harming you or has threatened to harm you.
- Basic information
- Who can get an order of protection
- Steps for obtaining an order of protection
- After the hearing
Basic information
back to topWhat is the legal definition of domestic violence in Montana?
This section defines domestic violence for the purposes of getting an order of protection.
Under Montana law, domestic violence crimes are crimes committed by a partner or family member. These crimes include:
- assault
- aggravated assault
- intimidation
- partner or family member assault (see definition below)
- criminal endangerment
- negligent endangerment
- assault on a minor
- assault with a weapon
- unlawful restraint
- kidnapping
- aggravated kidnapping
- arson
- sexual assault
- stalking (see definition below)
- incest.*
"Partner" refers to 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.
"Family member" refers to mothers, fathers, children, brothers, sisters, and other past or present family members of a household whether these relationships are biological, or through adoption or remarriage.*1
"Partner and family member assault" is:
- Physically hurting a partner or family member on purpose; or
- Negligently (not on purpose) hurting a partner or family member with a weapon; or
- Putting a partner or family member in reasonable fear of physical harm.*2
For the exact wording of the law, see Section 45-5-206 on our Legal Statutes page.
"Stalking" is when someone causes you serious emotional distress or makes you scared that they are going to hurt you by repeatedly:
- following you
- harassing you
- threatening you or
- intimidating you.
Harassment, threats, and intimidation can be in person, by mail, over the phone, through email, or any other way.*3
For the exact wording of the law, see § 45-5-220 on our Legal Statutes page.
* Mont. Code Anno. § 40-15-102(1)
*1 Mont. Code Anno. § 45-5-206(2)
*2 Mont. Code Anno. § 45-5-206(1)
*3 Mont. Code Anno. § 45-5-220(1)
back to topWhat 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 makes you afraid.
In Montana there are two types of orders of protection:
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, the abuser will be served with a copy of the order after it is granted. This copy will generally also include a notice of court hearing for a more permanent order, as described below. *
A Written Order of Protection is a written court order to protect you and your family members from violent and/or harassing behavior by the abuser. A written order of protection is sometimes also called a "permanent order of protection". It may last for a specific period of time (for example, 3 months) or remain in effect permanently. A written order of protection can be granted only after a full court hearing where the abuser has an opportunity to appear and tell his/her side of the story.**
*Mont. Code Anno., § 40-15-201
**Mont. Code Anno., § 40-15-204
back to topHow 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, annoying, 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 possession of personal property such as home, car, and other essential property (no matter who owns it)
- Order your abuser to complete violence counseling (including chemical dependency counseling or treatment, if necessary)
- Award custody of your minor children to you or the other parent (only district courts can award custody - check with a domestic violence or sexual assault victim program for further information)
- Order visitation of your children between the parents (only district courts can order visitation - check with a domestic violence or sexual assault victim program for further information)
- Prevent the abuser from having any contact with your minor child
- Pay child support payments to you if legally obligated
Whether a judge orders any or all of the above depends on the facts of your case.
back to topIn which county can I file for an order of protection?
You can file a petition in the county where you live, in the county where the abuser lives, or in the county where the abuse took place. There is no minimum length of residency required to file a petition.*
* Mont. Code Ann. § 40-15-301(4)
Who can get an order of protection
back to topWho can get an order of protection?
You can ask the court for an order of protection against anyone who has:
- assaulted you,
- stalked you,
- raped you,
- sexually assaulted you,
- committed incest with you, or
- murdered your partner or family member.*1
You can ask the court for an order of protection against a "family member" or "partner" who has committed any of the following offenses against you:
- assault
- aggravated assault
- intimidation
- partner or family member assault
- criminal endangerment
- negligent endangerment
- assault on a minor
- assault with a weapon
- unlawful restraint
- kidnapping
- aggravated kidnapping
- arson*2
Note: "Family member" means: mothers, fathers, children, brothers, sisters, and other past or present family members of a household whether these relationships are biological, or through adoption or remarriage.
Note: "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.*3
Also, 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.*2
*1 Mont. Code Ann. §40-15-102(2)
*2 Mont. Code Ann. § 40-15-102(1)
*3 Mont. Code Ann. § 45-5-206
back to topCan I get an order of protection against a same sex partner?
No. According to Montana law, only heterosexual partners qualify for orders of protection. The law says a person can only get an order of protection against:
- A “partner”, which is defined as “spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex;”* OR,
- A “family member”, which is defined as “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.”**
- assaulted you,
- stalked you,
- raped you,
- sexually assaulted you,
- committed incest with you, or
- murdered your partner or family member.***
* Mont. Code Ann. § 45-5-206(2)(b)
** Mont. Code Ann. § 45-5-206(2)(a)
*** Mont. Code Ann. §40-15-102(2)
back to topAm I eligible if I am a minor?
If you are a minor (under 18), a parent, guardian ad litem or other representative may file for an order of protection on your behalf.*
An order of protection is effective against the abuser regardless of the abuser's age.**
* Mont. Code Ann. §§ 41-1-101, 40-15-102(3)
** Mont. Code Ann. § 40-15-102(4)
back to topHow much does it cost to get an order of protection?
It does not cost anything to apply for an order of protection.
back to topDo I need an attorney to obtain an order of protection?
No, but it is always better to have one if you can. If your 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. You will find a list of agencies that might be able to help you at the MT State and Local Programs page under the Where to Find Help tab on the top of this page. You will find contact information for courthouses and clerks at the MT Courthouse Locations page.
Free legal assistance is sometimes available in Montana for low-income people who petition for orders of protection. For help in finding free legal assistance in your area, please visit MT Finding a Lawyer page under the Where to Find Help tab on the top of this page.
Steps for obtaining an order of protection
back to topStep 1: Go to the courthouse.
Orders of Protection may be filed in justice, city, municipal, or district courts in the county in which you live or to which you have fled to escape abuse. You can find the court in your area by going to our MT Courthouse Locations page. Tell the clerk of civil court that you want to file for an Order of Protection. If you would like custody or visitation of your children to be addressed as a part of your Order of Protection, you will need to file in district court.
Note: If a divorce or custody action is filed in district court involving you and your abuser, your petition for an Order of Protection should be filed in district court. If there is a divorce or custody action pending in district court you may request an Order of Protection in justice, city, or municipal court only if the judge handling your divorce or custody case is unavailable, or you left the county where the abuse occurred in order to escape the abuse. In such cases, you must provide a copy of the relevant district court documents to the court when the petition is filed.
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.
back to topStep 2: Get the necessary forms.
Ask the civil court clerk for the form - called a Petition - for filing for an Order of Protection. Forms may also be obtained from most domestic violence victim agencies and many agencies have people available to help you through this process. Please see MT State and Local Programs to find an agency near you.
back to topStep 3: 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.”
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. 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.
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.
Some courts will provide an instruction form for you to fill out that advises law enforcement how to find the abuser to serve him/her with an Order of Protection. If you are provided such a form, fill it out as completely as possible.
Do not sign the application until you have shown it to a clerk. The form must be signed in front of a notary public or a judge. There are notaries and judges at the courthouse. The forms are provided to you at no charge. There are no filing fees or costs assessed for service. The petition is then presented to the judge.
back to topStep 4: A judge will review your petition.
After you finish filling out your petition, and have signed it in front of a notary or judge, bring it to the court clerk. The clerk will forward it to a judge. The judge may wish to ask you questions as he or she reviews your petition.
If the judge decides that you are in immediate danger of harm, s/he will issue a Temporary Order of Protection that 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 a local domestic violence victim agency, or Montana Legal Services Association which you can find in our Where to Find Help pages.
back to topStep 5: Service of process
The 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 tell his/her side of the story. Usually the court will send copies of the Temporary Order to law enforcement for service, but in some areas you may have to bring the papers to law enforcement yourself.
Ask the court clerk or a domestic violence victim agency for more information about serving the abuser. For a list of Sheriff and Police Departments in your area, go to the Sheriff Dept. Locations & Info page.
Law enforcement will try to serve the abuser with the Temporary Order of Protection that the judge has granted.
Any Temporary or Written Order of Protection will be valid when the abuser has been presented with it or has knowledge that it exists.
back to topStep 6: What will I have to prove at the hearing?
You must prove that:
- You are "in reasonable apprehension of bodily injury" by the respondent (meaning that you are reasonably afraid that s/he will injure you); or
- that the respondent committed one of the following offenses (as listed in Sec. 45-15-102 of the Montana Code):
- partner or family member assault
- other assault (with or without a weapon)
- intimidation
- endangerment
- unlawful restraint
- kidnapping
- arson
- that the respondent:
or
- stalked you,
- raped you,
- sexually assaulted you,
- committed incest with you, or
- murdered your partner or family member
For more detailed information, please refer to the MT Legal Statutes.
See the Preparing your Case section under the Preparing for Court tab at the top of this page for ways you can show the judge that you were abused.
back to topStep 7: 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 permanent or for a specified amount of time.
The abuser may request an emergency hearing before the end of the 20-day period by filing an affidavit stating that 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 filing of the affidavit. 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 and you will have to start the process over. Also, if you do not show up at the hearing, it may be more difficult for you to obtain an order in the future.
If the abuser does not show up for the hearing the judge may still grant you a Written Order of Protection, or the judge may order a new hearing date.
At a court hearing, the judge will evaluate your abuser's past history of violence, how badly s/he hurt you, any evidence presented at the hearing, and listen to both sides of the story.
If your abuser shows up to the hearing with a lawyer, you may ask the court for a "continuance," which means a later court date. You can ask for this extra time so that you can try to find a lawyer to help you.
After the hearing
back to topWhat 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.
- You may wish to consider changing 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.
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. Women 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 batterers obey protective orders, but some do not. It is important to build on the things you have already been doing to keep yourself safe. We have safety planning suggestions on our Safety Planning page. Advocates at local domestic violence victim agencies can assist you in designing a safety plan and can provide other forms of support. To find an advocate in your area please visit the MT State and Local Programs page.
back to topI 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 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. To find a shelter or an advocate at a local program, please visit the MT State and Local Programs page under the Where to Find Help tab at the top of this page. You will also find information on safety planning on our Staying Safe page.
You may also be able to reapply for an order of protection if you have new evidence to show the court that domestic abuse did occur, or if a new incident of domestic abuse occurs after you are denied the order.
back to topWhat can I do if the abuser violates the order?
If you believe that your abuser has violated the order of protection, you can call 911. If the police arrive and believe the abuser has violated the order, the abuser can be arrested. It can be against the law to violate any order of protection (temporary or permanent).
When the police arrive, it may be a good idea to write down the name of the responding officer(s) and their badge numbers in case you want to follow up on your case. Make 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 may help you have the order extended or modified in the future.
back to topHow 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. You'll have to call the court clerk to find out, or email us for help. If you have further questions about this please write to our Email Hotline.
back to topWhat 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.
Different states have different rules for enforcing out-of-state orders. You may have to register your order with the court clerk in your new county. You can find out about your new state’s policies by contacting a domestic violence program, the clerk of courts, or the prosecutor in your new area.
Call the court where you originally received the order to tell them your new address so that they can contact you if necessary.
To read more about moving out of Montana please visit our Moving to Another State with a Protection Order page.