An individual may file a petition for an Order of Protection in family court in South Carolina to stop an abuser from contacting them. An Order of Protection requires that the abuser be the individual’s current or former spouse, the mother or father of their child, or a person of the opposite sex with whom they live or used to live. If the abuser does not fit into one of these categories, the individual should file a petition for a restraining order in magistrate court. A magistrate court is a general type of low-level court that has criminal trial jurisdiction over all offenses punishable by 30 days in jail and a fine up to $500.
South Carolina Law Regarding Orders of Protection
Victims should file a petition for an Order of Protection in the county where the domestic violence happened, where the abuser lives or the where the victim last lived with the abuser. The victim may also file the petition where they currently live or are sheltered. If the abuser lives in another county, and the victim’s current county does not fall into one of the categories, the victim will have to fill out another form to transfer the case to the county where the abuser lives.
An Order of Protection lasts for between six months and one year. If a victim wants to have the order extended, they can file a Motion for Extension of Order of Protection. The court can extend the Order of Protection for good cause, such as the abuser violating the order. If the victim does not file for an extension of the order and does not have another family court case with a restraining order related to divorce or custody, then the Order of Protection and everything in it, like child support and custody-related orders, will expire.
What to Include in the Petition
The petitioner should state the specific time, date and place where the most recent abusive incident happened with all relevant details. If the abuser was arrested for criminal domestic violence by a law enforcement officer, and the victim wrote a victim witness statement, they should review the statement to refresh their memory.
If the abuser has any past convictions of criminal domestic violence or has had other orders of protection against them, the victim should note this and include the dates, if known. If the victim does not know this information, they should do a records search for the abuser on the state's judicial website. A victim advocate can help with such a search.
What Documents to File for a Court Order
A victim requesting an Order of Protection should file the petition for the order; the summons or notice of hearing, which the clerk typically fills out; a financial declaration if they are requesting child support or alimony; and the police information sheet. A victim should not fill in the address where they are staying if they do not want the abuser to access this information; they can provide a mailing address instead. The victim should ask the clerk for a copy of the papers they are filing to ensure that they are protecting their information adequately.
After the victim files the paperwork with the court, the abuser is served with the documents by a sheriff’s deputy or another adult at the residence that can accept it. The person will receive copies of all of the documents the victim filed.
Possibilities With Order of Protection
An Order of Protection restrains the abuser from contacting the victim and going to the victim’s home, work, school or other place that the judge notes in the order. The order can grant a victim custody of children that the victim shares with the abuser. The order can cover visitation with the children by either giving the respondent reasonable visitation, supervised visitation or denying visitation altogether.
An Order of Protection can also require the abuser to pay child support for any children the victim and abuser have together. The order can require the abuser to pay spousal support or alimony if the victim is married to the abuser and grant the victim possession of the residence in which the victim and abuser live. The order can restrain the abuser, or both the victim and the abuser, from transferring or destroying property that might belong to the other person or that may be marital property.
The order can include that either person have police department assistance in getting their personal property from a residence. An order may award attorney’s fees to either person if they had to use an attorney in the case. An order can also grant a victim any other relief they request in their petition, such as possession of a specific car.
Court Date for Protective Order
In a hearing for an Order of Protection, a judge typically begins by asking the victim why they filed the Order of Protection. They should tell the judge if they have witnesses or evidence to introduce. The abuser will then have the chance to tell their side of the story. A victim should not interrupt the abuser.
If the victim needs to respond, they can ask the court for permission to speak again or to cross-examine the abuser by asking them direct questions. If the victim thinks the judge did not address a particular issue, such as a request for alimony, they can stand up and ask the judge about the matter. The judge will then make a decision.
Grant or Denial of Petition
If the court grants a victim an Order of Protection, the victim will usually wait outside the courtroom until a bailiff or deputy comes out with the signed order. The victim will then need to get a copy of the order from the clerk and keep a copy of the order with them at all times. The victim should provide a copy to businesses and schools that should have one, such as their employer and their child’s school.
If the court denies the Order of Protection, there will be no barrier to prevent the abuser from contacting the victim, assuming there is no other order in place to prohibit contact, such as a no-contact order in a criminal case. If the abuser threatens or harasses the victim, the victim should contact the police. A victim who believes the court was legally wrong to deny the order should file a Motion for Reconsideration. They must do this within 10 days of the date of the denial of the order.
The victim should file the Motion for Reconsideration with the court and serve a copy on the other party. There are no forms for such service. It is likely the victim will need help from an attorney for this. A victim can also file a new petition for an Order of Protection. They may be able to get a new court hearing if they made a mistake in how they completed the paperwork or did not have their evidence and witnesses available.
Consequences of Violating Order
The court can sentence an abuser who has violated an Order of Protection to 30 days in jail. An individual can also ask the family court to find the abuser in contempt for violating the order. They will need to file a Rule to Show Cause with the clerk of court. The judge can hold the abuser in contempt, issuing a penalty that might range from a warning to community service to a year in jail.
Basics of Restraining Orders
A court will enter a restraining order against a defendant if the court finds that the individual has engaged in harassing or stalking the plaintiff. A restraining order remains in effect for one year. It typically orders a defendant not to contact the plaintiff, to stay away from the plaintiff’s home, work, school or other places they usually go, and not to abuse or threaten the plaintiff or their family.
The court can find that the defendant committed first-degree harassment, second-degree harassment or stalking against the plaintiff.
First-degree harassment means causing someone mental or emotional distress by taking actions such as damaging their property or following them. To allege that first-degree harassment occurred, a plaintiff must prove that the defendant has a habit of acting in an abusive manner. This means the defendant committed abusive acts two or more times against the plaintiff. The plaintiff is required to show that the abuser acted intentionally and unreasonably, and that the actions were a substantial intrusion into the plaintiff’s private life.
To show that second-degree harassment occurred, a plaintiff must prove that the defendant has caused them mental or emotional distress by taking actions such as contacting the plaintiff repeatedly through verbal, electronic or written means. The plaintiff must prove that there is a pattern of the defendant acting this way, that the defendant acted intentionally and unreasonably, and that the actions were a substantial intrusion into the plaintiff’s private life. To allege that stalking occurred, a plaintiff must prove that the defendant said, wrote or did something to make the plaintiff fear that the defendant would cause harm to the plaintiff, their family or their family’s property.
Temporary Restraining Orders
A court may enter a temporary restraining order against a defendant before holding a full hearing. The court does not have to notify the defendant that it has granted this order. A defendant must follow a temporary restraining order’s terms until the order expires. If the order has no expiration date, the defendant must follow this order until the next hearing date in the case. The penalty for a violation of a temporary restraining order is 30 days in jail and a fine up to $500.
Right to Counsel
An individual who is appearing in court to address an order of protection or restraining order has a right to be represented by an attorney. The court will not appoint counsel. The individual can hire a private attorney or the South Carolina Bar’s Pro Bono Program may be able to connect them with a volunteer attorney for free.
No-Contact Order Is Different
A no-contact order is a condition that a judge sets in a criminal case that involves abuse of a victim. The defendant must abide by the judge’s order in order to remain out of custody before the case is resolved. If the defendant violates the no-contact order, the court could revoke the defendant’s bond.
Court Services During COVID-19
Many South Carolina county courthouses have reopened for operations after shutting down because of COVID-19. An individual can learn more about the restrictions and updates for their county courthouse by reviewing the web page on operations posted by the South Carolina Judicial Branch. The website indicates that some types of courts may have limited operations.
A court in its discretion may use videoconferencing for hearings if a party requests this, and all parties have the capability. A county courthouse may require temperature checks, masks and social distancing upon entry and limit the number of people in the court at one time. Defendants and victims may be called one at a time, with the requirement that they wait in their cars until the case is called.
All filings and documents received by the magistrate office will be quarantined for 48 hours before staff may process them. A party should enclose a stamped, self-addressed envelope for their receipts and clocked copies. The magistrate office will mail their receipts and paperwork once it has completed processing them.
- South Carolina Legal Services: Filing for an Order of Protection in South Carolina
- South Carolina Code of Laws: Section 16-25-10 Domestic Violence
- South Carolina Judicial Branch: Magistrate Court
- University of South Carolina, School of Law: A Defendant's Guide to Restraining Orders
- South Carolina Code of Laws: Article 17 Harassment and Stalking
- South Carolina Bar: Pro Bono Resources
- South Carolina Judicial Branch: Courthouse Operations
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.