Unfortunately, many domestic relations cases overlap into the realm of criminal law. While Orders of Protection are not themselves criminal actions, they are often thought of that way because they are usually based on alleged criminal behavior, involve police, and the violation of such an Order can land a person in jail.
However, Domestic Orders of Protection from Abuse serve an important purpose to many victims and potential victims out there. So what exactly is a domestic order of protection from abuse and how can one be obtained?
First, the proper name is “Order of Protection”. You get an Order of Protection by filing a Petition for an Order of Protection. There are a few different “elements” of an Order of Protection that must be considered to be successful in filing a Petition. Among these elements are jurisdiction, a proper defendant, and contents of a petition.
JURISDICTION — Where do I file?
South Carolina Code of Laws, Section 20-4-30 states the petition should be filed in one of four places: 1) where the abuse occurred, 2) where the petitioner resides, 3) where the Defendant resides, and 4) where the parties last shared a residence together. However, it is best to file in the county where the Defendant resides to avoid issues pertaining to proper venue.
PROPER DEFENDANT — Who can I file against?
An Order of Protection may only restrain certain classes of people. Those people are 1) a spouse, 2) a former spouse, 3) a person with whom the Petitioner shares a common child, 4) a male or female with which Petitioner lives with or lived with previously.
CONTENTS OF A PETITION — Do I have grounds for an Order?
South Carolina Code of Laws, Section 20-4-40(b) states that in order to obtain grounds for an Order of Protection:
A petition for relief must allege the existence of abuse to a household member. It must state the specific time, place, details of the abuse, and other facts and circumstances upon which relief is sought and must be verified.
Included within the definition of abuse are bodily injury, physical harm, assault, and the threat of physical harm.
The State of South Carolina, by law, may not charge a filing fee and the clerk’s office of your county courthouse should have simplified forms available to complete your petition.
HEARINGS ON PETITIONS — What’s Next?
There are two options for a hearing. One is an emergency hearing, granted for “good cause shown” within 24 hours of service of the petition, and the other is a non-emergency hearing which must take place within 15 days of the filing of the petition. To show good cause
A prima facie showing of immediate and present danger of bodily injury, which may be verified by supporting affidavits, constitutes good cause for purposes of this section.
Whether or not the hearing is an emergency the Petitioner will have the burden to show by a preponderance of the evidence that abuse occurred.
ORDERS OF PROTECTION — What kind of Protection?
If the Court awards an Order of Protection it will specify what kinds of protection it intends. The options available to the Court are protections:
(1) temporarily enjoining the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed;
(2) temporarily enjoining the respondent from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of this chapter and temporarily enjoining the respondent from entering or attempting to enter the petitioner’s place of residence, employment, education, or other location as the court may order.
In addition to these restraints against the respondent a Court may also award other relief to the Petitioner, including but not limited to, temporary child support, custody, and visitation Orders.
DURATION — How Long am I Protected?
Orders of Protection remain in effect, at minimum, six months. At most, a full year. When an Order is set to expire the Petitioner may apply to the Court for an extension. If this occurs the Respondent is entitled to a hearing on the extension within 30 days of the date upon which the order will expire. Another way to terminate an Order of Protection is for the parties to reconcile. If this happens the Petitioner must appear at the offices of the issuing court, show proper identification, and sign a written request to dismiss based on the reconciliation.
Terms in an Order of Protection pertaining to custody, visitation, child support, and other issues may require a subsequent court order for termination.