How do you get an Order of Protection in SC?
If you are in a situation where you or a family member needs a protective order quickly, you should immediately contact our office to speak with an experienced family law attorney who can help you get started.
In this article, you will learn about protection orders in SC, including:
- The difference between a restraining order and an Order of Protection,
- Who you can get an Order of Protection against,
- Where and how to file a Petition for an Order of Protection, and
- What an Order of Protection can do for you.
Basics of Orders of Protection in South Carolina
Order of Protection vs. Restraining Order
There are two types of restraining orders available under SC law, each used in different situations, and each issued by a different type of court:
- Orders of protection: are issued by the family court when the person being restrained is a member of your household, and
- Restraining orders: are issued by the magistrate court when someone is harassing or stalking another person, or when someone is 1) a crime victim or 2) a witness in a criminal case.
In this article, we are discussing the details of protective orders issued by the family court.
How Do You Get an Order of Protection in SC?
How do you go about getting an order of protection in SC?
We’ll go over how and where to file for an order of protection, but, first, it is important to understand the difference between an order of protection and a restraining order.
Who Can You Get a Protection Order Against?
SC Code § 20-4-40 says that a Petition for an Order of Protection can be 1) made by any household member or on behalf of a minor household member 2) against another household member who has abused or is abusing someone in the home.
The Petition must be verified, and it must allege:
- The existence of abuse to a household member,
- The specific time, place, and details of the abuse, and
- Other facts or circumstances that justify the relief sought.
The definitions found in SC Code § 20-4-20 limit “abuse” to:
- Physical harm or the threat of physical harm, or
- Sexual criminal offenses committed against a household member by a household member.
Who is considered a “household member?”
- A spouse,
- A former spouse,
- Persons who have a child in common, or
- Persons* who are cohabiting or who have formerly cohabited.
Are Same Sex-Couples Considered “Household Members?”
Although SC law defines a “household member,” in part, as “a male and female who are cohabiting or formerly have cohabited,” the SC Supreme Court held in Doe v. State that this language is unconstitutional because it denies the protection of SC’s domestic violence laws to same-sex couples.
Any person who is subject to abuse from a household member in a same-sex relationship is entitled to the protection of SC’s domestic violence laws and can seek an Order of Protection in SC’s family courts.
Where to File for an Order of Protection
Under SC Code § 20-4-30, you can file for an Order of Protection in the family court (or with a magistrate if no family court judge is available) in the county where:
- The abuse happened,
- The petitioner is being sheltered (if that is in SC),
- The petitioner lives (if that is in SC), or
- The parties last lived together.
How to Get an Order of Protection
If you need an Order of Protection, we recommend that you contact an experienced family court attorney immediately. If you choose to try this on your own, however, the Clerk of Court should be able to provide you with the forms that you will need – there are no filing fees for a Petition for an Order of Protection.
If there is a pending action for divorce or separate support and maintenance, the Petition is filed as a Motion for Further Relief, and your attorney can request an emergency hearing. If the court agrees, based on the contents of the Petition, that there is an emergency, the court will hear the Petition quickly – within 24 hours if possible.
When there is no pending action, the Petition for an Order of Protection is filed as a separate action in the family court, but you can still request an emergency hearing.
What Does an Order of Protection in SC Do?
If you prove your case to the family court, SC Code § 20-4-60 says that the judge can issue an Order of Protection that:
- Temporarily enjoins the abuser “from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed,”
- Temporarily enjoins the abuser “from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of” SC’s domestic violence laws, and
- Temporarily enjoins the abuser “from entering or attempting to enter the petitioner’s place of residence, employment, education, or other location as the court may order.”
The Order must also inform the person that violation of the Order is a criminal offense that carries up to a year in jail, that it is a misdemeanor punishable by up to three years in prison for the person to enter a domestic violence shelter where the Petitioner lives, and that it is a felony that carries up to five years in prison if the person has a weapon at the time of the violation.
When a family court issues an Order of Protection, the court can also:
- Order temporary custody or visitation rights,
- Order temporary alimony or child support,
- Order temporary possession of the family residence to the Petitioner,
- Prohibit the person from transferring, disposing of, or destroying any property owned by the parties,
- Order temporary possession of personal property or pets to the Petitioner,
- Prohibit harm or harassment of any pets owned by Petitioner or other household members, and
- Award costs or attorney fees to either party (note that, although there is no filing fee, the court can assess costs against the Petitioner if they do not prove their case).
How Long Does a Protection Order Last?
SC Code § 20-4-70 says that an Order of Protection “must be for a fixed time not less than six months nor more than one year,” but the court can extend or terminate the Order “upon motion by either party showing good cause with notice to the other party.”
Can Someone Subject to an Order of Protection Own a Gun?
A person subject to an Order of Protection in SC is not automatically prohibited from owning a gun – the family court judge who issues the Order must make specific findings in the Order and give the defendant notice that they are prohibited from owning a firearm.
SC Code § 16-25-30 says that, for the person to be prohibited from possessing a firearm, the Court must:
- Make “specific findings of physical harm, bodily injury, assault, or that the person offered or attempted to cause physical harm or injury to a person’s own household member with apparent and present ability under the circumstances reasonably creating fear of imminent peril,”
- Include in the Order that the person is “prohibited from shipping, transporting, receiving, or possessing a firearm or ammunition,” and
- “Deliver to the person a written form that conspicuously bears the following language: ‘Pursuant to 18 U.S.C. Section 922, it is unlawful for a person convicted of a violation of Section 16-25-20 or 16-25-65, or a person who is subject to a valid order of protection pursuant to Chapter 4, Title 20, to ship, transport, possess, or receive a firearm or ammunition.’”
If the Court makes these findings and delivers the notice to the person, the prohibition on gun possession will last for the duration of the Order of Protection.
Questions About Orders of Protection in SC?
If you are in a situation where you need a Protection Order in SC, and you need advice about how to proceed, you can contact the SC family law attorneys at Templeton, Mims & Ward at (843) 891-6100 or by sending us an email through our website to set up a consultation and find out how we can help.