In cases where someone is being abused, threatened, or stalked, South Carolinians can obtain a legal order from Family Court or Magistrate Court to help secure the safety of themselves and their children. South Carolina offers two main types of restraining orders, both of which are slightly different (and often misunderstood or conflated).
- An Order of Protection is issued by the Family Court and protects you from an alleged domestic abuser who is a spouse, former spouse, co-parent, or someone of the opposite sex who lives (or has lived) in the same household as you.
- A Restraining Order is issued by a Magistrate and applies to individuals who are not a family or household member. Restraining orders come into play when someone is the victim of harassment or stalking.
The biggest difference between the order is just whether or not the perpetrator of the abuse is a member of the victim’s household or family.
Order of Protection Process
The first step is to fill out a complaint from your local courthouse and file it. If the judge believes you are in immediate danger, he or she may order a hearing within 24 hours to determine whether or not abuse was committed by a family or household member. At the emergency hearing, the court will hear testimony regarding the alleged acts of abuse, and both sides will be allowed to present evidence. If the court believes that the abuse occurred, the court will issue an order of protection prohibiting the abuser from having contact with you and may grant additional relief if asked for including, but not limited to, temporary use and possession of the home, temporary custody of the children, and temporary child support. Typically orders of protection are issued for a period of six months or one year.
You may petition to extend an order of protection against your family or household member. The subject of an order of protection will not be able to purchase a gun while the order is active. Additionally, violation of an order of protection is a crime.
Process For a Restraining Order
The process starts with filing a complaint in Magistrate’s court. The complaint must allege with specific instances that the perpetrator has committed the offenses of either Stalking, Harassment in the 1st Degree, or Harassment in the 2nd Degree. The Court will serve the complaint on the alleged perpetrator of the abuse and will set a date for a contested hearing. At the hearing, both sides have the right to present evidence and testimony. The Court will only hear evidence from allegations listed in the complaint. If the Court believes that the allegations are true, it will issue a restraining order good which may or may not include firearm prohibitions for the abuser. The restraining order is issued for at least one year, which can be extended by showing good cause to the Court. Violations of the order can result in fines and/or jail time.
Cate & Brough, P.A. Can Help
Our firm has deep experience dealing with family law and criminal law matters, which often intersect with orders of protection and restraining orders. If you need legal help in either of these areas, contact Cate & Brough, P.A. today to set up a call. When times get rough, call Brough!
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