How do you get a restraining order in SC?
If you are in a situation where you or a family member needs a restraining order quickly, you should immediately contact our office to speak with an experienced criminal defense attorney who can help you get started.
In this article, you will learn about restraining orders in SC, including:
- The difference between a restraining order and an Order of Protection,
- Restraining orders for harassment and stalking,
- Temporary and emergency restraining orders, and
- How to get a permanent restraining order if you are a crime victim or witness.
What is a Restraining Order in SC?
How do you go about getting a restraining order in SC?
It’s not as easy as many people think – you will need to prove 1) that someone has been harassing or stalking you before the magistrate will issue a temporary restraining order or 2) that you are a crime victim or a witness against a convicted criminal defendant before the circuit court will issue a permanent restraining order.
Below, we’ll go over how to get a temporary restraining order from a SC magistrate or a permanent restraining order from the circuit court, but, first, it is important to understand the difference between a restraining order and an Order of Protection.
Restraining Orders vs. Orders of Protection in SC
Two types of restraining orders are available under SC law – each is used in different situations, and each is issued by a different court:
- Restraining orders: are issued 1) by a magistrate judge when someone is harassing or stalking another person or 2) against a criminal defendant when a person is a victim of a crime or was a witness against the defendant in a crime.
- Orders of Protection: are issued by the family court when the abuser is a member of your household.
In this article, we will discuss the details of temporary restraining orders issued by a magistrate or permanent restraining orders issued by the circuit court.
Who Can You Get a Restraining Order Against in SC?
The magistrate court can issue a temporary restraining order against a person who is engaged in first- or second-degree harassment or stalking, and the circuit court can issue a permanent restraining order to protect a crime victim or witness.
Anyone can request a restraining order against any other person – there is no requirement that the person be a household member. But the allegations must fit the elements of harassment or stalking or the person requesting the restraining order must be a crime victim or witness.
We recommend that you seek advice from a SC attorney before approaching the magistrate or circuit court to seek a restraining order.
Temporary Restraining Orders: Harassment and Stalking
SC code § 16-13-1700 defines harassment first degree, harassment second degree, and stalking – to get a temporary restraining order from a SC magistrate, you must prove that the defendant is committing one of these crimes and that you are entitled to protection from them.
Harassment 1st Degree in SC
1st-degree harassment involves “a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person and would cause a reasonable person in his position to suffer mental or emotional distress.”
It could include:
- Following the targeted person,
- Visual or physical contact after the harasser has been given notice that the contact is unwanted,
- Surveillance of the targeted person’s home, work, school, or other place regularly visited by the targeted person, or
- Vandalism and property damage.
Harassment 2nd Degree in SC
2nd-degree harassment also involves “a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person and would cause a reasonable person in his position to suffer mental or emotional distress,” but the intrusion is to a lesser degree than that of 1st-degree harassment.
Harassment second degree could include “verbal, written, or electronic contact that is initiated, maintained, or repeated.”
Stalking in SC
“Stalking” is the most serious form of harassment in SC. It involves a pattern of verbal, written, or electronic words or conduct that serves no legitimate purpose and is intended to cause the target person to fear:
- Criminal sexual conduct,
- Kidnapping, or
- Property damage.
A “pattern” means “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.”
Where Do You File a Temporary Restraining Order?
You file a complaint and motion asking for the temporary restraining order in the magistrate court in the county:
- Where the defendant lives,
- Where the harassment or stalking happened, or
- Where you live if the defendant lives out of state or cannot be found.
How Do You File a Temporary Restraining Order in SC?
For a temporary restraining order under SC Code § 16-2-1750, you must file a Complaint and Motion for Restraining Order in the magistrate court that 1) alleges harassment or stalking, 2) is verified, and 3) informs the defendant of their right to retain counsel to represent them.
You will have to allege in a complaint and motion for a harassment/stalking restraining order that:
- The person is engaged in harassment or stalking,
- The time, place, and manner of the harassment or stalking, and
- Any other facts or circumstances that justify the request.
There is no filing fee for a restraining order, but the magistrate may assess costs against the losing party.
Can You Get an Emergency Temporary Restraining Order in SC?
SC Code § 16-3-1760 authorizes magistrates to hold an emergency hearing within 24 hours of the filing of a Complaint – without giving the defendant notice of the hearing. If the plaintiff proves a “present danger of bodily injury, verified by supporting affidavits,” the magistrate can issue a temporary restraining order at the emergency hearing and a full hearing will be scheduled for later.
The temporary restraining order must then be served on the defendant, “with a copy of the complaint and a Rule to Show Cause why the order should not be extended for the full one-year period,” at least five days before the next hearing date.
What Does a Temporary Restraining Order Do in SC?
SC Code § 16-3-1770 authorizes a magistrate to enjoin a defendant from:
- “Abusing, threatening to abuse, or molesting the plaintiff” or their family,
- Entering or attempting to enter the plaintiff’s home, workplace, school, or other locations, or
- Communicating with the plaintiff.
How Long Does a Temporary Restraining Order Last?
SC Code § 16-3-1780 says that, when a temporary restraining order is issued at an emergency hearing, it lasts until the next hearing on the Rule to Show Cause why the order should not be extended.
The final restraining order is for a fixed period no longer than one year, but it can be extended by the court after a hearing with notice to the defendant.
What is the Punishment for Violating a SC Restraining Order?
Violating a temporary restraining order is punishable by up to 30 days in jail.
Permanent Restraining Orders: Crime Victims and Witnesses
When the defendant has been convicted of a crime, the victim and witnesses who assisted in the prosecution can seek a permanent restraining order against the defendant in either the circuit court (general sessions if it is requested at the defendant’s sentencing or common pleas if a separate action is filed) or the family court (if the offender was a juvenile).
How Do You Get a Permanent Restraining Order?
If you are a crime victim or a witness in a criminal case, you can get a permanent restraining order against the defendant under SC Code § 16-3-1910 by:
- Asking for it in General Sessions Court at the defendant’s sentencing hearing after they have been convicted (or the family court in a juvenile criminal case), or
- Filing a summons and complaint in common pleas court (the civil side of the circuit court).
The easiest way to get a permanent restraining order is to be present at the defendant’s sentencing or to make sure the prosecutor’s office’s victim’s advocate knows that you are requesting the restraining order – circuit court judges often grant these restraining orders at sentencing and incorporate them into the defendant’s sentence.
What Does a Permanent Restraining Order Do?
A permanent restraining order protects the victim or witness in a criminal case and enjoins the defendant from:
- Abusing, molesting, or threatening the victim or witness or their family,
- Entering or attempting to enter the victim or witness’ home, workplace, school, or other locations, and
- Communicating or attempting to communicate with the victim or witness or their family.
How Long Does a Permanent Restraining Order Last?
Although it says, “permanent,” a permanent restraining order remains in effect for a period of time determined by the judge, and it can be modified later on the victim or witness’s request.
Can You Get an Emergency Permanent Restraining Order?
SC Code § 16-3-1920 authorizes a magistrate court to issue an emergency restraining order upon proof that the defendant has been convicted of a crime and that the complainant is a victim or witness of the crime.
The magistrate can hold an ex parte hearing and issue an emergency restraining order – within 24 hours – if the complainant shows that:
- Common pleas court is not in session,
- The defendant was convicted of a crime and the complainant was a victim or witness,
- “Immediate injury, loss, or damage will result to the victim or witness” if the magistrate does not take action, and
- Either 1) the complainant has unsuccessfully attempted to serve notice on the defendant, or 2) “the harm that the remedy is intended to prevent would likely occur if the respondent were given prior notice” of the restraining order.
The emergency restraining order stays in effect for 45 days if the complainant has not sought a permanent restraining order in the circuit court.
What are the Penalties for Violating a Permanent Restraining Order?
If the underlying conviction was a felony, violation of a permanent restraining order is also a felony that carries up to five years in prison.
If the underlying conviction was a misdemeanor, violation of a permanent restraining order is a misdemeanor that carries up to three years in prison.
Questions About Restraining Orders in SC?
If you are in a situation where you need a restraining order in SC, and you need advice about how to proceed, you can contact the SC criminal defense attorneys at Templeton, Mims & Ward at 843-285-5090 or by sending us an email through our website to set up a consultation and find out how we can help.
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