What is the legal definition of domestic violence in Montana?
For the purposes of getting an order of protection, domestic violence is defined as:
- when you are reasonably afraid of bodily injury from a partner or family member; or
- when a partner or family member commits one of the following crimes against you:
- aggravated assault
- partner or family member assault
- criminal endangerment
- negligent endangerment
- assault on a minor
- assault with a weapon
- strangulation of a partner or family member
- unlawful restraint
- aggravated kidnapping
- stalking.1Note: Victims of sexual assault or incest are also eligible - see next paragraph.2
In addition to victims of domestic violence, you can file for an order of protection against anyone who commits one of the following crimes against you, regardless of your relationship to the offender:
- aggravated assault;
- assault on a minor;
- sexual assault;
- sexual intercourse without consent;
- sexual abuse of children;
- human trafficking; or
- a partner or family member of a victim of deliberate homicide or mitigated deliberate homicide.2
Note: In addition, a parent or guardian can seek an order on behalf of a child under age 16 against an adult who has no legal supervision/control over the child if the parent believes that contact between them is not in the child’s best interests (even if there is no domestic violence or crime committed).3 For more information, see Can a minor get an order of protection?
1 Mont. Code § 40-15-102(1)
2 Mont. Code § 40-15-102(2)
3 Mont. Code § 45-5-622(4)
What types of orders of protection are there? How long do they last?
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. A judge can issue it if you allege, and the judge believes, that you will be in danger of harm if the court does not issue a temporary order of protection immediately. It is effective for up to 20 days.1 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. Note: If you meet the requirements for an order of protection, the length of time between the abusive incident and your application for an order of protection is irrelevant.2
A final 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. Generally this hearing will take place approximately 20 days after the temporary order is issued. However, the abuser may request an emergency hearing before the end of the 20-day period by filing an affidavit that demonstrates that s/he has an urgent need for the emergency hearing. An emergency hearing must then be set within 3 working days of the filing of this affidavit.3 A final order of protection (which is sometimes called a “permanent order of protection”) can last for a specific period of time or remain in effect permanently.4
1 Mont. Code § 40-15-201(1),(2), (4)
2 Mont. Code § 40-15-102(6)
3 Mont. Code § 40-15-202(2)
4 Mont. Code § 40-15-204
What protections can I get in an order of protection?
A temporary or final order of protection can order the abuser to:
- Stop threatening to commit or committing acts of violence against you or other family members;
- Stop harassing, annoying, disturbing the peace of, contacting or otherwise communicating, directly or indirectly, with you or other family members (or any witness to the abuse);
- Not remove your child from the state (jurisdiction of the court);
- Leave and stay 1,500 feet (or another distance) away from you, your home, your school, work, or another specific place;
- Be excluded (removed) from your home (regardless of who owns the home);
- Not transfer, hide, or get rid of any property (except as would normally be done in the “usual course of business”);
- Give you possession and use of the home, a car, and other essential property (no matter who owns any of these things) and order law enforcement to accompany you to the home to get these items;
- Order the abuser to complete violence counseling (including drug counseling or treatment, if necessary);
- Be prohibited from possessing or using a firearm (if one was used in an assault against you); and/or
- any other relief that is necessary to provide for the safety and welfare of you or your family members.1
Whether a judge orders any or all of the above depends on the facts of your case.
1 Mont. Code §§ 40-15-201(2); 40-15-204(3)
In 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.1 To figure out which type of court to file in, please see our Steps for obtaining an order of protection section.
1 Mont. Code § 40-15-301(4)
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.