If you require the court's help to protect you from someone in South Carolina, you have two options: a restraining order or an order of protection. These are both civil orders, meaning you are asking the court to take steps to protect you from an abuser, but not asking the court to send your abuser to jail for committing a crime. An order of protection is a type of restraining order, but different circumstances apply.
Meaning of Restraining Order
You would seek a restraining order in South Carolina if the person you want protection from is someone who is not a household member. A restraining order, which is granted by a magistrate, prohibits that person from continuing to harass or stalk you.
Under South Carolina law, harassment is defined as two or more instances that interfere with your private life and could cause a reasonable person mental distress. Examples of harassment include following you, continuously contacting you, regularly attending your home or place of work uninvited, or any pattern of unwanted communication, including by phone, text or email.
Stalking is similar to harassment but is considered to be more serious. The legal standard is that it would cause a reasonable person to believe that another person would kill, assault or kidnap her or a member of her family. In most cases, you need two police reports proving that the person has harassed or stalked you on at least two occasions. However, if the person has a current charge pending for harassment or stalking, you may be able to get a restraining order without two police reports.
In South Carolina, violation of a restraining order is a criminal offense that carries a maximum penalty of 30 days in jail and a fine of $500, with repeat offenders facing harsher penalties.
How to Get a Restraining Order
You can file for a restraining order in the magistrate court in the county where the alleged harassment or stalking took place, in the county in which the alleged stalker lives or in the county in which you live if the alleged stalker is not a resident of South Carolina or cannot be found.
The first thing to do is go to the magistrate court clerk in your county or in the county in which you want to file. The clerk will give you the correct forms to complete, together with instructions. There is no filing fee for a restraining order in South Carolina, although you may have to pay the fee if the court does not find in your favor.
After you’ve filed your petition, the court will schedule a hearing. This is your opportunity to prove that the person is harassing or stalking you. If the judge believes you are in immediate danger, he may grant a temporary, emergency restraining order without first holding a hearing. This is known as an ex parte order and lasts until the hearing date.
If you prove harassment or stalking, the judge will issue an order restraining the person from abusing or threatening you or members of your family, entering your residence, job, school or other location specified by the judge, or communicating with you in any way. A restraining order lasts for one year, but it can be extended in some cases. If the person is also charged with harassment or stalking in the criminal court, the restraining order lasts until he goes to trial on those charges.
Meaning of Order of Protection in South Carolina
You would seek an order of protection in South Carolina if the person you want protection from is a household member. This includes spouses, former spouses, a person you have a child with or a person of the opposite sex with whom you live or used to live with. An order of protection, which is granted by a judge in the family court, prohibits that person from continuing to inflict abuse.
Abuse is defined as physical harm or the threat of physical harm, physical injury, assault, rape or another sexual criminal offense. Abuse can take many forms, including being kicked, punched, slapped, shoved or sexually molested.
In South Carolina, violation of an order of protection is a criminal offense, punishable by 30 days in jail or a fine of $200, and repeat offenders face harsher penalties.
How to Get an Order of Protection
You can file for an order of protection in South Carolina in the family court in the county where the alleged act of abuse took place, in the county where you live, in the county where the alleged abuser lives, or in the county where you last lived with the alleged abuser.
The first step toward getting an order of protection is to go to the family court clerk in your county or in the county in which you want to file. The clerk will give you the correct forms to complete, together with instructions. There is no filing fee for an order of protection in South Carolina.
When your petition is filed, a hearing will be scheduled. If you ask for an emergency hearing, and the judge is satisfied that you are at immediate risk of harm, a hearing may be held within 24 hours. At the hearing, you must prove that the alleged abuser committed physical harm, bodily injury, assault or the threat of physical harm, or committed sexual criminal offenses against a family or household member.
If you prove your case, the family court judge will make an order to restrain the abuser from abusing, threatening to abuse or molesting you; restrain the abuser from communicating or attempting to communicate with you in any way; and restrain the abuser from entering or attempting to enter your home, place of employment, school or any other place the judge deems necessary. The order may also deal with custody and visitation arrangements if the parties have a child together, require the abuser to pay temporary financial support for you and your child, and grant temporary, exclusive use of the residence to either party. The order may include other provisions, depending on the circumstances of the case.
A family court order of protection lasts for six months to one year.
What Is a No-Contact Order?
A no-contact order in South Carolina is not the same thing as an order of protection, although it does have a protective purpose. A no-contact order is sometimes put in place when someone is free on bond for domestic violence to prohibit him from contacting the victim for any reason whatsoever. The aim is to keep the accused and the victim apart while the accused is out on bail awaiting trial. It gives the victim some protection while the accused is not in jail.
A no-contact order is made by the judge at the accused's bond hearing as a condition of his release. It orders the accused not to contact the victim in any way, including by phone calls, emails, text messages, letters and social media messages. It also includes indirect contact, for example, asking a friend to contact the victim. Whether the accused gets bond or receives a no-contact order is entirely at the judge's discretion, based on the circumstances of the case.
A no-contact order applies across state lines, and violation of the order may result in revocation of bond, meaning the accused spends time in jail until the trial date. A no-contact order cannot be made in the case of emotional abuse. In this case, an order of protection is the appropriate remedy.