Protection Order FAQ
These are answers to the most comonly asked questions about the Lincoln County Victim/Witness Advocate Program.
If you don't find your answer here, feel free to contact us.
*These are only general guidelines in the process and procedures and are not necessarily inclusive or exclusive
For more complete and precise information, please contact:
District Court (406) 283-2342 | Justice Court (406) 283-2412 | or the Crime Victim Advocate (406) 283-2415
Frequently Asked Questions
I need an order of protection to keep him/her from taking the kids.
Custody of the children must be established via a parenting plan which can be obtained through the District Court. Orders of protection provide protection to the child/children in the event there has been a specific event in which the children were harmed. They cannot be used to restrict parental rights based upon speculation of what “may happen.”
My “ex” is with a “known” drug dealer, child molester, etc., so I need an order of protection to keep him/her away from my kids.
Again, the way to protect the children is by establishing a parenting plan. There must be more than feelings of disapproval of the lifestyle the “ex” is living to include the children in the order of protection. If the child/children have been directly exposed to drug use, inappropriate sexual contact, or violence they may include them in the petition for order of protection. Based on the information included in the petition, the judge may elect to include the child/children. Keep in mind that the person seeking protection has no more of a right to determine who is around the child/children than the other party has to determine who they allow around the children.
I need to get an order of protection against my neighbors.
Orders of protection were initially created for intimate partner violence. Any criminal activity between people without an intimate relationship should be handled criminally. However, in the event that there is ongoing harassment or threats it may be possible to obtain an order of protection. Describe the most recent event and give an abbreviated summary of the history between the parties. The judge’s time is limited so it is important to include only the pertinent details. The information included in the petition must meet the necessary criteria for the judge to grant the order.
I need an order of protection because the one she/he has against me is full of lies.
Orders of protection are not granted to contest other orders nor as a means to defend oneself. This is the purpose of the hearing which is mandated to be set within 20 days of issuance. The judge will expect testimony at that time to contradict the information contained in the order of protection. It is extremely rare for an order to be granted in the interim.
I need an order of protection because I’m afraid she/he is going to trash my stuff.
Orders of protection are exclusively about safety. From the court’s perspective, if either party’s “stuff” is damaged it is a criminal matter and does not fall within the criteria necessary to grant an order of protection. This is a civil or criminal matter.
What do you mean it doesn’t qualify? The sheriff told me to get one.
Unfortunately, law enforcement may not understand the strict criteria necessary for the issuance of an order of protection. Justice Court has a two-page description of what is necessary for an order of protection to be issued. Law enforcement is often unable to take any action without an order from the court therefore they encourage all individuals to exercise their right to seek an order of protection. Ultimately the judge determines whether or not the request meets the criteria.
When will he/she be served?
It first must be granted. Simply submitting the order does not mean that it will be granted. Once notified that it has been granted, the paperwork is taken to the Sheriff’s Department for service. How long it takes is up to the Sheriff’s Department. Typically it is entered into the system and assigned to a deputy. From there it depends upon the availability of the deputy and how evasive the respondent is. Because it is civil paperwork, service cannot be forced. If the person being served is determined not to be served little can be done.
What happens now?
- Once the judge has reviewed the petition and determined whether or not it meets the criteria, the protected party will receive a call from Justice Court letting them know whether it was granted or denied.
- If it was granted the Court will provide the hearing date and time and request they pick up their copy at the Justice Court window.
- If it was denied the court provides a copy of the petition along with a cover letter explaining the reasons for denial.
- It may be that by adding more detailed information that the judge may reconsider.
- It may be necessary to begin with a letter of no contact.
- Once the judge has reviewed the petition and determined whether or not it meets the criteria, the protected party will receive a call from the Court letting them know whether it was granted or denied.
- If granted they will be provided the hearing date and it is requested that they pick up a copy of the order.
What happens at the hearing?
- The hearing is the respondent’s opportunity to contest the entry of the order of protection.
- If the respondent does not want it to continue he/she is expected to come to court to testify as to the reasons why.
- The petitioner must be present, ready to testify if he/she wants the order to remain in effect.
- If the petitioner is not present the order will be dismissed.
- If the respondent is not present and the petitioner is, the order will likely continue.
- The judge will take some testimony from the petitioner to determine how long the order should be in effect.
- The judge will meet with the respondent to see if he/she will stipulate to the order without findings of fact.
- If that is agreeable, there will be no hearing.
- If the respondent insists on the hearing all parties will be in the courtroom together.
- Testimony will be given first by the petitioner.
- Following testimony the judge will determine if and for how long the order will continue.
- The petitioner will be excused from the courtroom to wait for the new paperwork.
- The initial hearing is only to determine if the person is contesting the order.
- Because it is set on a law and motion day, there is no time for testimony.
- If children are involved the court may ask the party seeking protection if he/she is opposed to letting the children see the other party if it was supervised.
- Other than this, no other interaction should occur.
- It is the protected party’s obligation to file for a contested hearing if he/she wants the order to continue.
- The contested date must be set within 90 days or the temporary order will expire.
- During the time between the first hearing and the contested hearing the order typically remains in full force and effect.
So now he/she has to leave me alone?
Yes. An order of protection means that there is now a court order stating he/she is not permitted to have contact with the protected party. It is important to review the specifics of the order to understand any permitted contact. While the party cannot be charged with violating the order if he/she has not been served, the order is in effect as soon as the judge signs it.
He/she has to keep paying the bills, right?
Unless the judge writes specifically that it must be done, it is very difficult to enforce such an order and typically must be addressed in civil court.
How will I know when he/she has been served?
The only way to know if an order has been served is by contacting the Sheriff’s Office.
He/she can’t come to the property?
If you want him/her prohibited from the property the address must be listed on the petition and if granted, he/she would only be permitted there if accompanied by a deputy.
How long before the hearing?
The hearing must be set within 20 days of issuance and the exact date is usually determined by the judge’s schedule. The respondent must be served five days prior to the hearing for it to be considered legitimate service.
Will he/she be there?
Whether he/she will be there depends upon the person. If they choose to contest the order they will be there. There is no penalty for him/her not appearing.
Do I have to be in the same room with him?
In Justice Court until the time when it is known whether the issue is contested the parties are separated if at all possible. If he/she is requesting the hearing they will be in the same room. In District Court the parties are in the same courtroom.
What happens if this doesn’t qualify?
Based upon the information provided in the denial, the party may attempt to provide more information. However, it may be necessary to write a letter of no contact. In the interim, the person seeking protection should be encouraged to continue reporting to law enforcement.
I’m afraid if I do this he/she will be really angry...
The odds are that he/she will be angry. However, the order of protection gives law enforcement permission to intervene and forces consequences upon the individual if he/she violates the order.
What if I don’t know where he/she is?
While the court and law enforcement expect the instruction to peace officer page to be filled out as completely as possible, they understand there may be information the party does not have. Instruct the party to write “unknown” wherever applicable so the page doesn’t appear incomplete. “Sheriff knows that” is not a sufficient answer and should not be left blank believing they will search for the information.
How do I get the order dropped?
It is not as easy as one would like to drop an order. Typically the judge will want the person making the request to appear before them so they are confident the party is not being coerced or threatened into requesting a dismissal. District Court expects a motion for a hearing to dismiss an order of protection to be filed, whereas Justice Court may accept a letter requesting dismissal. The letter must 1) be delivered by the person to the court, and 2) witnessed by a Justice Court staff person.
My order is about to expire. How do I keep it going?
As an order comes within a week of expiring, the person still desiring protection should fill out a whole new petition. Begin by stating the current order will be expiring (give date). From there describe any violations that have occurred while the current order was in effect and the reasons it is still necessary.