Who is eligible for an order of protection?
Domestic violence victims who have been the victim of certain crimes (listed here) can file for an order of protection against the partner or family member who abused them. “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
In addition, a parent / 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 solely because 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).2 For more information, see Can a minor get an order of protection?
Also, anyone who was the victim of one of the following crimes against them, regardless of their relationship to the offender, can file for an order of protection:
- aggravated assault
- assault on a minor
- sexual assault or
- sexual intercourse without consent or
- a partner or family member of a victim of deliberate homicide or mitigated deliberate homicide.3
1 Mont. Code § 40-15-102(1)
2 Mont. Code § 45-5-622(4)
3 Mont. Code § 40-15-102(2)
Can I get an order of protection against a same-sex partner?
In Motana, you may apply for an order of protection against a current or former same-sex partner as long as the relationship meets the requirements listed in Who is eligible for an order of protection? You must also be the victim of an act of domestic violence, which is explained here What is the legal definition of domestic violence in Montana?
You can find information about LGBTQIA victims of abuse and what types of barriers they may face on our LGBTQIA Victims page.
Can a minor get an order of protection?
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.1 In addition, a parent or guardian of a child who is under age 16 can verbally or in writing request that a person who is 18 or older and who has no legal right of supervision or control over the child stop contacting the child if s/he believes that the contact is not in the child’s best interests. If the adult continues to contact the child, the parent, guardian, or other person supervising the welfare of the child may file a petition for an order of protection on behalf of the child. The parent/guardian also has the option of asking the county attorney to petition for the order of protection instead. There does not have to be any domestic violence or other crime committed.2
An order of protection is effective against the abuser regardless of the abuser’s age.3
1 Mont. Code §§ 41-1-101, 40-15-102(3)
2 Mont. Code § 45-5-622(4)
3 Mont. Code § 40-15-102(4)
How much does it cost to get an order of protection?
It does not cost anything to get or serve an order of protection.1
1 Mont. Code § 40-15-204(8)
Do I need an attorney to get an order of protection?
You do not need an attorney to get an order of protection but it is generally helpful to have an attorney who is knowledgeable about domestic violence with you in court if you can. If the abuser has an attorney, it is especially important to also try to get legal representation.
In many places, local domestic violence or sexual assault programs can help you file for an order of protection but an advocate cannot represent you at a hearing, only an attorney can. You will find a list of agencies that might be able to provide an advocate at our MT Advocates and Shelters page. You will find contact information for courthouses at our 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 our MT Finding a Lawyer page.