Are you in a situation where you’re afraid of someone who is abusing you, harassing you and/or threatening you or your family? What would be necessary for you and your family to feel safe? Do you need to request an Order of Protection, and if so, what is it & what is needed?
A Temporary Order of Protection (also commonly referred to as a Restraining Order) is a no-cost order issued by the court to stop violent and harassing behavior and is meant to protect the petitioner (person requesting protection from the court) and their family from the respondent (person afflicting/threatening violence). It also requires the respondent stay a certain distance away from the petitioner, the petitioner’s children, and other family members. This means not only must the respondent stay away from the petitioner’s residence, but also their place of work and the petitioner’s children’s school or childcare facility. The respondent is prohibited from threatening to commit or committing acts of violence, as well as harassing, annoying, disturbing the peace of, telephoning, contacting, or otherwise communicating, directly or indirectly, with the petitioner, any named family member, any other victim of this offense, or a witness to the offense. The respondent is also prohibited from removing any child named in the order from the jurisdiction of the court. In addition, if the judge deems it applicable, he/she may include terms related to child custody, visitation, and child support.
If you have petitioned the court for a Temporary Order of Protection and the court granted it, the court will set a hearing within 20 days to determine whether or not to keep it in place and change it to a permanent Order of Protection.
The following are legal excerpts from Montana Code Annotated explaining eligibilities the courts look for before issuing an Order of Protection:
40-15-102. Eligibility for order of protection.
(1) A person may file a petition for an order of protection if:
(a) the petitioner is in reasonable apprehension of bodily injury by the petitioner's partner or family member as defined in 45-5-206; or
(b) the petitioner is a victim of one of the following offenses committed by a partner or family member:
(i) assault as defined in 45-5-201;
(ii) aggravated assault as defined in 45-5-202;
(iii) intimidation as defined in 45-5-203;
(iv) partner or family member assault as defined in 45-5-206;
(v) criminal endangerment as defined in 45-5-207;
(vi) negligent endangerment as defined in 45-5-208;
(vii) assault on a minor as defined in 45-5-212;
(viii) assault with a weapon as defined in 45-5-213;
(ix) strangulation of a partner or family member as defined in 45-5-215;
(x) unlawful restraint as defined in 45-5-301;
(xi) kidnapping as defined in 45-5-302;
(xii) aggravated kidnapping as defined in 45-5-303; or
(xiii) arson as defined in 45-6-103.
(2) The following individuals are eligible to file a petition for an order of protection against the offender regardless of the individual's relationship to the offender:
(a) a victim of assault as defined in 45-5-201, aggravated assault as defined in 45-5-202, assault on a minor as defined in 45-5-212, stalking as defined in 45-5-220, incest as defined in 45-5-507, sexual assault as defined in 45-5-502, sexual intercourse without consent as defined in 45-5-503, sexual abuse of children as defined in 45-5-625, or human trafficking as defined in 45-5-701; or
(b) a partner or family member of a victim of deliberate homicide as defined in 45-5-102 or mitigated deliberate homicide as defined in 45-5-103.
(3) A parent, guardian ad litem, or other representative of the petitioner may file a petition for an order of protection on behalf of a minor petitioner against the petitioner's abuser. At its discretion, a court may appoint a guardian ad litem for a minor petitioner.
(4) A guardian must be appointed for a minor respondent when required by Rule 17(c), Montana Rules of Civil Procedure, or by 25-31-602. An order of protection is effective against a respondent regardless of the respondent's age.
(5) A petitioner is eligible for an order of protection whether or not:
(a) the petitioner reports the abuse to law enforcement;
(b) charges are filed; or
(c) the petitioner participates in a criminal prosecution.
(6) If a petitioner is otherwise entitled to an order of protection, the length of time between the abusive incident and the petitioner's application for an order of protection is irrelevant.
Do you need help with requesting an Order of Protection? We are committed to breaking the cycle of violence by providing help with Orders of Protection, safety plans, immediate confidential crisis intervention, critical support services and numerous other resources to victims of violence. We believe every person has the right to make their own decisions and we provide empowerment, information, and support regarding those choices. HLHAS networks with local law enforcement, businesses and community members throughout our service area year-round promoting partnerships, education, awareness, and fundraising.
If you or someone you know is a victim of domestic violence in immediate danger, call 911. You are not alone, and it is not your fault.
If you need an advocate, contact HLHAS at 406-278-3342, on our 24-hour Crisis Line at 1-800-219-7336, or stop by our office located at 300 N. Virginia St, Ste #307, Conrad, MT 59425.
Part 1 of 2, by Autumn Miller