Restraining orders are directives from a court that order a person to stop abusing or harassing someone else. In Montana, these are called orders of protection, but they serve the same purpose, to protect a victim and restrain their abuser.
In Montana, two types of protection orders are available. One protects victims of domestic abuse, broadly defined under state laws. It is only available when the person to be protected and the person to be restrained are partners or family members. The other type of order of protection in Montana is available to anyone who is the victim of certain crimes, no matter the relationship between the parties.
What Is a Protection Order?
A protection order in Montana is a legal document issued by a state court that prohibits or restricts specified types of contacts by an individual who has abused, harassed, threatened or injured another person. It is sometimes called a restraining order.
The most common type of restraining order in Montana is a domestic violence protection order. These orders of protection are intended to protect an individual and sometimes their children, family members and pets, from abuse or harassment by a partner or family member. By issuing a protection order, the court directs the abuser to stop the behavior and, usually, to stay away from the victim.
Since domestic abuse protection orders in Montana are intended to protect victims of domestic abuse, the law requires that the victim and the abuser have some kind of familial or intimate-partner relationship. The different relationships that qualify are set out in the statutes. However, Montana also allows certain other individuals to file for protection orders in certain cases regardless of relationship between the parties. This includes parents or guardians of children in certain cases and also victims of certain crimes.
Who Is a Family Member/Partner?
What kind of relationship is required between individuals to qualify the victim to apply for a domestic abuse order of protection? Under state law in Montana, the person to be restrained must be either a member of the victim's family or else in a close relationship (a "partner" relationship) with them. Each of these terms is defined for purposes of this type of court order of protection.
The relationships that allow an individual to apply for a domestic violence order of protection as family members include mothers, fathers, children, brothers, sisters, and other past or present family members of a household. The family relationship need not be a blood relationship, but include relationships created by adoption and remarriage. That means that stepchildren, stepparents, in-laws, and adoptive children and parents are also family members. Under Montana law, these relationships continue throughout the lifetimes of the individuals, regardless of their ages and irrespective of whether the parties reside in the same household.
A partner, under Montana law, means a current or prior intimate partner. According to the statutes, it includes "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."
What Qualifies as Domestic Abuse?
Once a family member relationship or intimate partner relationship is shown between the person to be protected and the person to be restrained in Montana, an order of protection can be filed. The person applying for this order, the petitioner, must specify the abusive behavior involved.
An order of protection can be filed if the petitioner has reason to fear bodily injury by their family member or partner. Alternatively, an individual may file if they are a victim of any of the following crimes committed by a family member or partner:
- Assault/aggravated assault.
- Assault on a minor.
- Criminal or negligent endangerment.
- Unlawful restraint.
- Kidnapping/aggravated kidnapping.
Each of these terms is defined in Montana statutes.
Others Eligible for Protection Orders
In some circumstances, an individual may be eligible to file a petition for an order of protection even without a being family member or partner of the offender. This includes victims of assault, aggravated assault or assault on a minor. It also includes victims of incest, stalking, sexual assault, non-consensual sex, sexual abuse of children or human trafficking.
If an individual is killed in a deliberate homicide or mitigated homicide, their family members and partners may file for orders of protection without a special relationship with the offender. In addition, a parent or guardian can file a petition for a protection order on behalf of a minor petitioner against the minor's abuser.
Note that, in no case is the petitioner to be found ineligible for an order of protection based on whether they reported the abuse to law enforcement, whether the prosecutor files criminal charges, or whether the petitioner opts to participate in a criminal prosecution.
Types of Protection Orders
There are two types of protection orders in Montana: temporary orders and final orders. A temporary order is available on an emergency basis after an ex parte hearing. That means that the person asking for an order of protection is heard by a judge without the other person being notified of, or appearing at, the hearing. If the court believes that the petitioner will be in danger of harm without a protection order, the order is issued.
A temporary order of protection is usually the first order signed by the judge. The purpose of this order is to provide the petitioner with immediate protection from the abuser, and the order is valid for up to 20 days. At the same time, the court assigns a date for a hearing on a permanent order.
The permanent order can only be entered after the other party is given notice of a second hearing and has a chance to appear and present their case. A permanent order can last for a set period of years or can be permanent in Montana.
Applying for a Protection Order
When an individual wants to apply for an emergency protection order in Montana, they must file a petition for temporary order of protection in justice court, city court, municipal court, or a district court in the county where they live, in the county where the abuser lives, or in the county where the abuse took place. Don't worry about a period of residency in the county; there is no minimum period required to file a petition.
At the court, the petitioner fills out the forms for an order for emergency protection, entering the names of the parties and the abuse suffered. Victim advocates, trained to assist petitioners, are often available to help. When the petition form is completed, the petitioner signs it under penalty of perjury. After that, it is reviewed by a judge.
Sometimes the judge conducts a hearing where the petitioner is asked questions. If the judge is convinced that the petitioner is in danger, they will sign the emergency order and set a date for a full court hearing. The emergency order and the notice of hearing on the permanent order are served on the abuser by law enforcement.
Attending the Permanent Order Hearing
The petitioner must attend the permanent order hearing. If they do not appear, it is likely that the restraining order case will be dismissed. The petitioner should prepare thoroughly for the court date and, in Montana, may be represented by an attorney. They can also represent themselves.
They should produce any evidence of the abuse that they can find, including text messages, writings, photos, medical records, police records and anything else that can help to establish the facts of the case. Any witnesses who have personal knowledge about the facts of the case should also be asked to appear and testify.
The court will allow each side to present their case. The judge may ask questions of the parties and their witnesses. In the end, the court will make a ruling and either grant or deny the petitioner's request for a permanent order of protection.
Protections Possible With Order
A temporary or final order of protection can do any number of things in Montana. The court will decide what to include depending on the circumstances of the case. For example, the order can tell the abuser to stop threatening or committing violence against the petitioner or to stop harassment or other criminal acts. It can order them to move out of a shared residence no matter who owns it.
The order can also require the respondent to stay away from the petitioner, the house and workplace of the petitioner, and also the school of any minor children. It can order them to stay away from any family member or any family pets. It can also order the respondent to give up the use of firearms, to get counseling or to attend substance abuse classes.
If the court signs an order of protection, the petitioner should make copies of it and give copies to those in authority in their workplace, their children's schools and any other relevant locations. If the respondent is found violating the order, the police should be called. Violation of an order of protection is a criminal offense in Montana, and the state imposes criminal penalties for this.
Penalties for Violating Protective Order
Under Montana statutes, an offender who violated any term of protective order may be subject to criminal penalties if the offender was aware of the protective order at the time they violated its terms. Knowledge can be implied by the court if a protective order was served on the offender.
What penalties apply if an individual is convicted of violation of an order of protection? For a first offense, an offender is fined by the court in an amount not to exceed $500. They may also be imprisoned in the county jail for a term not to exceed six months, or the court may order both a fine and jail time.
Penalties for Repeated Violations
If the offender violates the order for a second time, the maximum fines and imprisonment time remain the same – $500 and six months – but a minimum is imposed. The offender must be fined at least $200 (but not more than $500), and they must be imprisoned in the county jail for at least 24 hours (but not more than six months.)
For third or subsequent offenses, both minimum and maximum fines and imprisonment time goes up. In these circumstances, the offender must be fined at least $500 but may be fined as much as $2,000. They may be imprisoned (either in the county jail or in state prison) for a term not less than 10 days and not more than two years.
- Montana Annotated Code: Section 45-5-206 Partner or Family Member Assault - Penalty
- Montana Annotated Code: Section 40-15-102 Eligibility
- Montana Justice Department: Orders of Protection
- Montana Justice Department: How to Obtain an Order of Protection
- Women's Law: Montana Orders of Protection
- Montana Annotated Code: Section 45-5-626 Violation of Order of Protection
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.