Because the attorneys of Futeral & Nelson, LLC are both criminal defense attorneys and family court lawyers, we’ve helped clients get restraining orders or family court orders of protection in Charleston, Dorchester, and Berkeley Counties. In this article, we answer some of the most common questions people ask lawyers about restraining orders and orders of protection in South Carolina and we discuss the third (lesser) option of getting a Trespass Notice.
What is the Difference Between an Order of Protection vs. Restraining Order in South Carolina?
There are two types of restraining orders in South Carolina. If you’re trying to restrain someone who is a member of your household (such as an abusive spouse), the restraining order is called an “Order of Protection.” An Order of Protection is granted by a family court judge. Otherwise, if you are trying to restrain another person such as someone who is harassing or stalking you, you may seek a Restraining Order which is granted by a Magistrate.
How Do You Get an Order of Protection in South Carolina?
If you and the person you are seeking the order against are “household members,” then you may be able to get an Order of Protection. In South Carolina, “family members” are any of the following:
- Former spouses;
- People who have a child in common;
- A male and female who are living together; or
- A male and female who used to live together.
Where Can I Get an Order of Protection in South Carolina?
You may file for an Order of Protection in the Family Court of any of the following counties:
- The county where the alleged act of abuse occurred;
- The county where the petitioner resides or is sheltered unless the petitioner lives in another state (if the alleged abuser does not live in this county, then the petitioner can only file here, but the case must be heard in another county that qualifies);
- The county where the alleged abuser resides, unless the alleged abuser lives in another state; or
- The county where the parties last resided together.
How Do I Get an Order of Protection in South Carolina?
The lawyers at Futeral & Nelson have represented numerous clients on both sides of Petitions for Family Court Orders of Protection. Please contact our office to schedule a consultation and learn where you stand.
If you do not believe you can afford to hire a lawyer, go to the Family Court Clerk of Court in one of the counties where you can file. The Clerk should provide you the necessary forms to fill out and file right there on the spot. There is no filing fee. Some counties also offer pro bono services for those who cannot afford a lawyer, and you may be able to have a lawyer help you fill out the petition, although that lawyer might not represent you at the hearing.
After it is filed, the judge will schedule a hearing. Some are held within 24 hours if you request it and the judge believes that an emergency exists. At the hearing, you will have to prove by the “preponderance of the evidence” that your “household member” committed:
- physical harm, bodily injury, assault, or the threat of physical harm; or
- committed sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member.
If you prove your case, then the family court judge can order any or all of the following:
- Restrain the abuser from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed;
- Restrain the abuser from communicating or attempting to communicate with the petitioner in any way, and restraining the abuser from entering or attempting to enter your home, place of employment, school, or other place the judge feels is necessary. No contact!
- Determine temporary custody and visitation if the parties have a child;
- Require the abuser to pay temporary financial support for the petitioner and the child;
- Grant temporary but exclusive use of the residence to either party;
- Prohibit the transferring, destruction, encumbering, or disposition of real or personal property owned or leased by both parties;
- Provide for temporary possession of personal property and order that the Sheriff will assist in having one party obtain property from the residence; and/or
- Require the abuser to pay your attorney’s fees.
A family court order of protection will be at least for 6 months but no more than one year. Also, the restrained person won’t be able to obtain a gun while the order is pending.
What Happens if Someone Violates an Order of Protection in South Carolina?
Violation of a family court order of protection is dealt with in one of two ways:
1. A finding by the court of contempt with up to one year in jail and up to $1,500 in fines.
2. A criminal finding with up to 30 days in jail or a fine.
If a person under a family court order of protection and that person has been charged with or convicted of criminal domestic violence or CDVHAN, that person can’t go to a domestic violence shelter where the victim resides. If so, that abuser can be sentenced by the court for up to 3 years in jail. If the person has a dangerous weapon, then it is a felony that carries up to 5 years.
What Should I Do Until I Get My Order of Protection?
If you believe you or your children are in danger by the abuser, do one or all of the following:
- Find a safe place to stay away from the abuser. For example, go to a friend’s or family member’s house (preferably one where the abuser might not think to look) until you’ve got the court involved.
- Call the police. They may be able to offer some protection by checking in on you until your court date. Second, report the abuser to document your allegations so you can present this information to the family court. Lastly, the police may arrest the person and charge them with assault or criminal domestic violence (CDV). For more information, please read our article concerning CDV in South Carolina.
- Seek medical treatment if you need it.
- Document any injuries by taking pictures.
How Do I Get a Restraining Order in South Carolina?
A person may file for a Magistrate’s Court restraining order against another person if the other person is engaged in harassment or stalking.
- Harassment is two or more instances that intrude into the private life of another person and that could cause a reasonable person mental distress. It can be following the person, continuously contacting the person, or regularly dropping by someone’s home or job. It can include a pattern of unwanted communication, including phone, text, letter, or email.
- Stalking is similar to harassment, except that it is more extreme and can cause a reasonable person to believe that the person would kill, assault, or kidnap them or a member of their family.
Generally, you need two police reports showing that the person has harassed or stalked you on two or more occasions. If the person has a current charge pending for harassment or stalking, you may be able to get a restraining order.
If you can’t afford an attorney, consider contacting a pro bono legal organization in your community and see if they’ll help you for free. You can also try to handle the case by yourself. If so, we suggest first going to a Magistrate. The Clerk of Court should provide you with the forms you need to file the complaint. There is no filing fee, but you may have to pay the fee if you don’t prove your case.
After you’ve filed for a restraining order, the court will then schedule a hearing. During the hearing, you will need to prove that the person is harassing or stalking you. In certain cases, the court can grant a temporary, emergency restraining order without a hearing (ex parte) that will hold you over until you get your hearing. If you prove your case, then 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 appropriate location as determined by the judge; or
- Communicating with you in any way.
The restraining order lasts for up to a year, but the judge can extend it in certain cases. If the person gets charged criminally with harassment or stalking, it will be extended until the person’s trial on those charges.
Where Can I Get a Restraining Order in South Carolina?
You can file in the Magistrate Court of any of the following counties:
- The county where the harassment or stalking occurred;
- The county where the alleged stalker lives; or
- The county where you reside if the alleged stalker is not a South Carolina resident or cannot be found.
What Happens if Someone Violates a Restraining Order?
Violation of a Magistrate’s Court Restraining Order is punishable by up to 30 days in jail, a fine of $500, or both. If the person has pending CDV charges or has been convicted of CDV and enters a domestic violence shelter where the victim is staying, that person can get up to 3 years in jail or up to 5 years if the person carries a weapon onto the premises.
What is a No-Trespass Notice in South Carolina?
If your circumstances don’t fit legally with either an Order of Protection or a Restraining Order, then another option is obtaining a Trespass Notice (Notice to Trespass). Call your local law enforcement and tell them that you have a concern that a particular person might harass you and ask them to issue the Trespass Notice. In most places, the police will personally deliver the notice to the person you are concerned with and the notice will be in effect until you remove it.
A Trespass Notice is not a strong protection if you are in fear of your safety though, and we still advise you to keep your guard up. For some stalkers, it will be enough. For others, it makes it easier for the police to at least arrest the person for trespassing. If you’re comfortable bringing it to your employer’s attention, you may ask your employer to request one for your place of work as well. A Trespass Notice is better than nothing and it may make it easier for you to obtain a restraining order later.
Let Our Charleston Criminal & Family Court Lawyers Help You
The lawyers at Futeral & Nelson have obtained restraining orders on behalf of clients and have also defended people falsely accused of harassment and stalking. If you are concerned with your safety due to someone else’s conduct, schedule an appointment with one of our lawyers. Because we have experience in both criminal and family courts, we’re able to help you get a Restraining Order or an Order of Protection.