Respondents get a lawyer for an order of protection hearing for three reasons: the hearing is held within 20 days, what you say under oath can be used in a criminal case, and a final order can affect firearms, your home, and time with your children for years. Montana's public defender statute does not list this civil hearing among the cases for appointed counsel, so the choice is yours to make, and quickly. This page explains what is at stake. It is part of our Montana Domestic Violence Guide.
A Civil Case on a Short Clock
An order of protection is a civil case under Title 40, chapter 15, separate from any criminal charge. A person may petition whether or not the abuse was reported to police and whether or not charges were filed (MCA § 40-15-102(6)). A court may issue a temporary order without prior notice to the respondent (MCA § 40-15-201(4)).
A hearing must then be conducted within 20 days from the date the court issues the temporary order. At the hearing the court decides whether good cause exists for the temporary order to be continued, amended, or made permanent (MCA § 40-15-202(1)). A misdemeanor criminal case can run for months. Here you have days to find a lawyer, gather evidence, and decide whether to testify. For the difference between the two kinds of orders, see no contact order versus order of protection.
What a Final Order Can Include
A final order may include all of the relief available in a temporary order (MCA § 40-15-204(3)).
| Subject | What the court may order | MCA |
|---|---|---|
| Contact | Prohibit telephoning, contacting, or otherwise communicating, directly or indirectly, with the petitioner and named family members. | § 40-15-201(2)(b) |
| Distance | Direct the respondent to stay 1,500 feet or another appropriate distance from the petitioner, the residence, school, or workplace. | § 40-15-201(2)(d) |
| The home | Remove and exclude the respondent from the petitioner's residence, regardless of who owns it. | § 40-15-201(2)(e) |
| Firearm | Prohibit possessing or using the firearm used in the assault. | § 40-15-201(2)(f) |
| Children | Restrain the respondent from a named minor family member, for a set time or permanently on certain findings. | § 40-15-204(4) |
| Property | Transfer possession and use of the residence, an automobile, and other essential personal property. | § 40-15-201(2)(h) |
| Counseling | Direct the respondent to complete violence counseling. | § 40-15-201(2)(i) |
The order may run for a period the court sets, or permanently if the court determines, based on the respondent's history of violence, the severity of the offense, and the evidence at the hearing, that the petitioner needs permanent protection (MCA § 40-15-204(1) and (5)).
The Risk of Testifying With Charges Pending
When a partner or family member assault charge is pending or possible, the civil hearing puts you in a difficult position. The hearing is on the record. If you testify, your words are your own statement, and a party's own statement offered against that party is not hearsay under Montana Rule of Evidence 801(d)(2). What is said there does not stay in the civil case.
The privilege against self-incrimination is not limited to criminal trials. The U.S. Supreme Court has said it also allows a person to decline to answer questions in any other proceeding, civil or criminal, where the answers might incriminate the person in future criminal proceedings (Lefkowitz v. Turley, 414 U.S. 70 (1973)). But declining to testify at a civil hearing leaves the petitioner's account unanswered by you. There is no choice here without a cost, which is why it should be made with a lawyer who knows both cases. See one lawyer for criminal and family cases.
Firearms and Parenting After a Final Order
Montana's statute lets the court prohibit the respondent from possessing or using the firearm used in the assault. Federal law is broader. Under 18 U.S.C. § 922(g)(8), a person may not possess a firearm or ammunition while subject to a court order that was issued after a hearing of which the person received actual notice and had an opportunity to participate, that restrains the person from harassing, stalking, or threatening an intimate partner or a child, and that includes a credible threat finding or an explicit prohibition on the use of physical force. A noticed final hearing is the point at which that federal provision can come into play. See orders of protection and guns.
On parenting, the order may restrain you from a minor child, and a parenting court later considers physical abuse or threat of physical abuse by one parent against the other parent or the child (MCA § 40-4-212(1)(f)). See an order of protection and your parenting plan.
What a Lawyer Does at the Hearing
- Reviews the sworn petition and identifies what the petitioner must show.
- Advises you on whether to testify, and prepares you if you do.
- Questions the petitioner and other witnesses, so that you never have to address the petitioner yourself.
- Presents your documents, photographs, and witnesses.
- Asks for a continuance where there is good cause, and addresses the scope and length of any order.
- Coordinates with your criminal defense so that one case does not damage the other.
The court cannot make an order mutual. A respondent who needs protection must file a separate petition (MCA § 40-15-202(3)). If that describes your situation, read accused and also a victim.
Until the Hearing, Follow the Temporary Order
Do not contact the petitioner to talk it through, apologize, or ask that the petition be dropped, and do not ask anyone else to. Violating a temporary order is a criminal offense under MCA § 45-5-626, and a violation can be raised at the hearing. Our page on responding to an order of protection explains the steps.
This page explains Montana and federal law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.