Montana Domestic Violence Guide

When an Order of Protection and a Parenting Plan Conflict in Montana

A parenting plan says you have the children this weekend. An order of protection says no contact. Here is how Montana law treats that.

Written by

Ashley Hurlbert, Partner, A&M Law

Licensed Montana attorney and co-founder of A&M Law. 18 years of experience as lead counsel in 50+ jury and bench trials. A Certified Mediator and Certified Guardian ad Litem focusing on family law, criminal defense, and DUI defense.

18 yearsReviewed by Misty GaubatzLast reviewed: September 12, 2026

Key Takeaways: Order of Protection and Parenting Plan

An order of protection is a court order backed by criminal penalties. A parenting plan is not a defense to violating it.
The order forbids the listed acts "even if invited by the petitioner or another person" and can be amended only by a court (MCA § 40-15-204(9)).
An order of protection may restrain the respondent from a named minor family member, for an appropriate time or permanently on certain findings (MCA § 40-15-204(4)).
When a dissolution or parenting case is already pending in district court, the petition generally belongs in that district court (MCA § 40-15-301(2)).
A hearing on a temporary order must be held within 20 days, and a respondent with an urgent need can request an emergency hearing (MCA § 40-15-202).
The fix for a conflict is always a written amendment from the court, never an informal arrangement.

When an order of protection and a parenting plan say different things, follow the order of protection and ask the court to fix the conflict in writing. A parenting plan gives you time with your children. It does not give you permission to do something another court order forbids, and violating an order of protection is a crime. This page explains what these orders can say about children and how the courts coordinate. It is part of our Montana Domestic Violence Guide.

Why the Order of Protection Comes First in Practice

Every temporary order of protection and order of protection must carry this notice: "Violation of this order is a criminal offense under 45-5-220 or 45-5-626 and may carry penalties of up to $10,000 in fines and up to a 5-year jail sentence. This order is issued by the court, and the respondent is forbidden to do any act listed in the order, even if invited by the petitioner or another person. This order may be amended only by further order of this court or another court that assumes jurisdiction over this matter" (MCA § 40-15-204(9)).

That language answers most practical questions. An invitation does not change the order. A text from the other parent does not change the order. A parenting plan signed last year does not change the order. Only a court does.

The Montana Code sections discussed here do not contain a sentence saying "an order of protection supersedes a parenting plan." The conclusion comes from how the two orders work: one creates a schedule, the other creates a criminal prohibition, and you can comply with both only by not doing the prohibited act.

What an Order of Protection Can Say About Children

The relief available in a temporary order is listed in MCA § 40-15-201(2), and a later order of protection may include all of it (MCA § 40-15-204(3)). Several items reach parenting directly.

Term the court may include	Effect on parenting	MCA
No contact, direct or indirect, with the petitioner or any named family member	Rules out calls, texts, and messages about the children unless the order makes an exception	40-15-201(2)(b)
Stay 1,500 feet or another distance from the petitioner, the residence, a school, or other named places	Can rule out pickups at the home or the children's school	40-15-201(2)(d)
Removal and exclusion from the petitioner's residence, regardless of ownership	The respondent cannot return to the home where the children live	40-15-201(2)(e)
No removing a child from the jurisdiction of the court	Limits travel with the children	40-15-201(2)(c)
Restraint from a named family member who is a minor	Stops contact with that child for the period the court sets	40-15-204(4)

The list in § 40-15-201 does not use the words "custody" or "parenting plan." It does allow "other relief considered necessary to provide for the safety and welfare of the petitioner or other designated family member" (MCA § 40-15-201(2)(j)). The statutory notice that health care providers give suspected victims says that a district court hearing a petition "may award custody of your minor children to you or the other parent" and "may order visitation of your children between the parents" (MCA § 40-15-103(1)). Parenting terms inside an order of protection are therefore possible, most clearly in district court.

Which Court Hears It

District courts, justice courts, municipal courts, and city courts all have authority to issue temporary orders of protection (MCA § 40-15-301(1)). The rules change when a family case exists:

A dissolution or parenting case is already pending. A person may file in a justice, municipal, or city court only if the assigned district judge is unavailable or the petitioner left the county to escape further abuse. That court then certifies the pleadings to the district court, which conducts the hearing unless both parties and both courts agree otherwise (MCA § 40-15-301(2)).
The family case is filed after the order of protection. If it is filed before the hearing, the hearing stays in the court where the order of protection was filed, and either party may appeal or remove the matter to district court (MCA § 40-15-301(3)).

An order of protection must also include a section stating whether other civil or criminal actions involving the parties are pending, with a brief description and the court (MCA § 40-15-204(6)). That is how one judge learns about the other case. A district court handling a dissolution can itself issue an order of protection on request (MCA § 40-15-204(2)), and its temporary injunction power includes "additional relief available under Title 40, chapter 15" (MCA § 40-4-121(2)(g)).

The Hearing Is Where Parenting Terms Get Fixed

A temporary order can be issued without notice to the respondent for up to 20 days (MCA § 40-15-201(4)). A hearing must be conducted within 20 days of the temporary order, and it can be continued for good cause, in which case the temporary order stays in effect (MCA § 40-15-202(1)). A respondent with an urgent need may ask for an emergency hearing, to be set within 3 working days of filing an affidavit (MCA § 40-15-202(2)).

At the hearing the court decides whether good cause exists to continue, amend, or make the order permanent. This is the time to ask for language about the children: whether they are covered, how exchanges happen, and whether the order yields to parenting orders from the district court. Our pages on the order of protection hearing and responding to an order of protection cover preparation.

If There Is Also a Criminal No Contact Order

An order of protection is a civil order. A no contact order under MCA § 45-5-209 comes from the criminal case and is a third document with its own terms. You may be subject to both, and you have to comply with each one. See no contact order vs. order of protection.

What to Do When the Orders Conflict

Put every order side by side and list what each prohibits: people, places, distances, and methods of contact.
Treat the strictest term as the rule until a court says otherwise.
Do not rely on the other parent's permission, a relative's assurance, or your own reading of an unclear phrase.
Ask your lawyer to file for an amendment or clarification. An amendment to an order of protection takes effect only after it is served in writing on the opposing party (MCA § 40-15-204(7)).
Keep following your support obligations and any parts of the parenting plan that the order does not touch.

Missed parenting time is painful, but it can be made up by a court. A conviction for violating an order cannot be undone as easily, and it becomes evidence in the parenting case. For the family court side, see PFMA and child custody.

This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.

Montana Domestic Violence Guide Domestic Violence Defense Child Exchanges Under a No Contact Order Divorce During a PFMA Case Allegations Raised in a Custody Case Children as Witnesses

FAQ

Order of Protection and Parenting Plan FAQ

Which controls, the order of protection or the parenting plan?

The statutes cited on this page do not contain a one-line priority rule. What they do say is that a respondent is forbidden to do any act listed in an order of protection even if invited, and that the order may be amended only by further court order (MCA § 40-15-204(9)). The safe reading is that a parenting plan never gives permission to do what an order of protection prohibits. Follow the order and ask the court to reconcile the two.

Can an order of protection include my children?

Yes. The court may restrain the respondent from any other named family member who is a minor, for an appropriate time period, or permanently if the court finds the minor was a victim of abuse, a witness to abuse, or endangered by the environment of abuse (MCA § 40-15-204(4)). Read the order to see whether your children are named.

Can I get a hearing sooner than 20 days if I cannot see my children?

A respondent may request an emergency hearing before the end of the 20-day period by filing an affidavit that demonstrates an urgent need. The emergency hearing must be set within 3 working days of the filing (MCA § 40-15-202(2)). Whether your situation qualifies is for the court to decide.

The other parent said it is fine to pick up the kids. Can I?

Not if the order prohibits the contact or the location. The required warning on every order says the respondent is forbidden to do any listed act even if invited by the petitioner or another person. Only the respondent can be cited for a violation (MCA § 45-5-626(2)), so the risk is entirely yours.

What is the penalty for violating an order of protection?

A first offense carries a fine of up to $500, up to 6 months in county jail, or both. A second carries a $200 to $500 fine and 24 hours to 6 months, and a third or later offense a $500 to $2,000 fine and 10 days to 2 years (MCA § 45-5-626(3)). See violating an order of protection.

Served With an Order of Protection That Affects Your Children?

Bring the order and your parenting plan, and we will explain what each one allows and how to ask the court for clarity. Call 406-830-3060 for a confidential consultation.

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