ORDERS OF PROTECTION

What is an Order of Protection?

An order of protection is an order of the court, signed by a judge, for protection of a victim, a named family member, other victim of the offense, or a witness to the offense. The order may require the removal of the offender from your residence; require the transfer of possession of certain property to you (or it may prohibit the offender from concealing or disposing of any properties); prohibit any threats, harassment, communication or contact whatsoever with you or family members; require the offender to seek counseling or treatment; or order any other relief considered necessary to provide for the safety and welfare of yourself or other designated family members. In cases involving partner or family member assault, there is no cost to file a petition for an order of protection or for the service of an order of protection. To avoid further injury or harm to the petitioner, the court may direct the order of protection remain in effect permanently.

Victims Eligible to File a Petition

You are eligible to file a petition for an order of protection if:

· You are in reasonable fear of bodily injury by a partner or family member, or if you are a victim of one of the following crimes committed by a partner or family member: an assault, aggravated assault, intimidation, partner or family member assault, criminal endangerment, negligent endangerment, unlawful restraint, kidnapping, aggravated kidnapping, or arson.

 

· You are a victim of stalking, incest, sexual assault, or sexual intercourse without consent, regardless of your relationship to the offender.

 

You may seek an order of protection even if there are no criminal charges filed and even if you did not report the abuse to law enforcement. The length of time between the abusive incident and your application is irrelevant so long as you meet the requirements for obtaining an order (see below).

If you are under the age of 18, the petition may be filed on your behalf against the offender by your parent, guardian ad litem, or other representative.

Procedure to Obtain an Order of Protection

You can seek a temporary order of protection by filing a sworn petition in a district, justice’s, municipal or city court.

· If a divorce or custody action is pending in district court, the petition must be filed with that court only, unless the district judge is unavailable or you left the county where the abuse occurred to avoid further abuse.

 

· The petition must state that you are in reasonable fear of bodily injury or a victim of one of the offenses listed above, have a relationship to the offender (if required), and you are in danger of harm if the court does not issue a temporary order of protection immediately.If the court agrees with the petition, it will issue a temporary order of protection granting the appropriate relief. 

 

· A hearing must be conducted within 20 days from the date the court issues a temporary order of protection. At that hearing, the court will determine whether good cause exists for the temporary order to be continued, amended, or made permanent.

 

· The offender may request an emergency hearing before the end of the 20-day period by filing an affidavit demonstrating an urgent need for the emergency hearing. The hearing must be set within three working days of filing the affidavit.

 

· An order of protection applies only to an offender and cannot be made mutually effective. An offender must file a separate petition requesting an order of protection.

 

· The petition may be filed either in the county where you currently or temporarily live or where the offender resides or where the abuse occurred. There is no minimum residency requirement. An order of protection may be granted even if you have left the residence or household to avoid abuse. The order is effective throughout the state of Montana and courts and law enforcement officials must enforce all orders of protection issued within the state.

 

Will an order of protection issued in another state be enforced?

If properly filed, the order will be enforced in the same manner as an order of protection issued in Montana. You must file a certified copy of the order, along with proof that a copy was served upon the offender, in a Montana court with jurisdiction over orders of protection in the county where you reside.

Are peace officers informed of the existence of an order of protection?

The courts must send a copy of any order or any extension, modification or termination, with proof of service, to the appropriate law enforcement agency designated in the order. The agency must ensure that peace officers are aware of the existence and terms of such order.

What happens when the offender is under the age of 18?

When required, a guardian must be appointed for an offender who is under the age of 18. An order of protection is effective against an offender regardless of age.

Can an order of protection be appealed?

An order issued by a justice, municipal, or city court is immediately reviewable by the district court judge upon the filing of a notice of appeal. The district judge may affirm, dissolve, or modify such order. An order issued by a justice, municipal or city court may be removed to district court upon filing a notice of removal.

Is the order of protection still in effect during the period of time the defendant is appealing the order?

If issued in justice, municipal or city court (courts of limited jurisdiction) the order of protection remains in effect during the time the order is being appealed unless the district court judge modifies the order.

TO PRINT OUT A PETITION FOR AN ORDER OF PROTECTION (MT) AND FOR MORE INFORMATION ON ORDERS OF PROTECTION, CLICK HERE: (this will take you out of HLHAS website)

http://doj.mt.gov/victims/forms.asp

 

 

 

 

 

 

Questions and Answers About Protective Orders

Q: Who qualifies for an order of protection?

A: You are eligible for an Order of Protection if:

· you are afraid that you are about to be physically hurt by your partner or family member; 

 

· you are a victim of an offense by your partner or a family member. The offenses that qualify include assaults, including what was formerly called domestic abuse, intimidation, endangerment, arson, unlawful restraint, and kidnapping; OR  

 

· even if you have no family or partner relationship with the offender, you are a victim of stalking, incest, sexual assault, or sexual intercourse without consent.

 

It does not matter when the abusive incident happened, as long as you are in danger of harm now. There is no requirement that the incident was reported to law enforcement.

Q: How do you get an order of protection?

A: You may apply for a Temporary Order of Protection by filing a sworn petition in court. Usually, Orders of Protection are filed in justice, city, or municipal court. There is no cost for filing the petition for an order of protection or for service of an order of protection.

Q: Where do you get the forms?

A: Order of Protection forms are available from any of the courts or from a domestic violence program.

Q: How do you fill out the forms?

A: Write in the court's name where you are filing the petition (district, city, justice, municipal). Write your name on the line marked "petitioner." Write the offender's name on the line marked "respondent." Read the petition carefully and put an "x" in the blank in front of the parts that apply to you and your situation. Describe in detail the injury or threats that the respondent (the offender) made. Explain when and where the abuse or threats occurred. If you have left home and do not want the offender to know where you are, write "confidential" in the address section. If there are things not in the petition that you want the court to order the offender to stop doing, or things you believe the offender should be ordered to do, write them in.

Fill out the "Instructions to Peace Officers" form so that the officers can find the respondent. The petition must be signed in front of a notary public or in front of a judge or justice of the peace. There are notaries and judges at the courthouse. The forms are provided to you without charge. The Petition is then presented to the judge.

Q: What if there is a divorce filed?

A: If a divorce or parenting (custody) action is filed in district court involving you and the respondent (the offender), your petition for an Order of Protection should be filed in district court where the divorce action is pending. 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, to escape abuse, you left the county where the abuse happened. A copy of the important district court documents in the divorce or custody case must be given to the justice’s or city court where the petition is filed. Once the justice of the peace or city judge enters an order of protection he or she will send the documents to the district court. The district court will hold a hearing unless both parties and both courts agree that the hearing should be held in the justice’s, city or municipal court where the petition was filed.

If you or the respondent files for dissolution of marriage after the order of protection is entered but before the hearing is conducted, the hearing will be held in the court in which the order of protection was filed. If you or the respondent want the hearing to be conducted by the district court, either of you may appeal/remove the order of protection to the district court.

Q: What does the court do?

A: If the judge finds that you are a victim of one of the threats or offenses listed above and in danger of harm, the court will issue a Temporary Order of Protection ordering the respondent to stay away from you, in addition to other protections.

The court may order some or all of the protections that you requested. The court will set a hearing within 20 days, and may postpone the hearing at the request of either you or the respondent, or on its own, if there is good reason to move the hearing date. If the hearing is postponed, the Temporary Order of Protection will remain in effect until the court holds a hearing. You must attend the hearing if you want the Temporary Order of Protection to continue past that time. The Order of Protection is enforceable after it is served on the Respondent and is valid in every county in the state.

Q: What do I do then?

A: Once an Order of Protection or Temporary Order of Protection is entered by the court, if the offender contacts you and/or violates the order you should call the police department, sheriff's office or other law enforcement agency. Tell them that your Order of Protection was violated. Violation of an Order of Protection is a crime.

Information provided by the Montana Department of Justice.