An order of protection is issued by the family court when the person being restrained is a member of one’s household. One must file a petition for an order of protection. Under §20-4-40, one’s petition for relief may be made by any household member or on behalf of minor household members who need protection from another household member. For a petition to be valid, the following must be alleged: abuse to a household member; state the specific time, place, and details of the abuse; and other circumstances upon which relief is sought. Additionally, orders of protection are valid for no less than six months and no more than one year; however, this may be modified by the court.
A “household member,” may be defined as a spouse, former spouse, persons who have a child in common, a male and female who are cohabitating or formerly have cohabitated. In Doe v. State, the Supreme Court of South Carolina held that same-sex couples are afforded the right to an order of protection. Now under South Carolina law, same-sex couples are deemed to fall under household members.
Once a family court judge has approved an order of protection, the abuser is restricted from acting (“temporarily enjoined”) in a variety of ways. First, an abuser is “temporarily enjoin[ed] from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed.” Further, an abuser is, “temporarily enjoined from communicating or attempting to communicate with the petitioner in any way which,” would violate South Carolina laws. Last, an abuser is not allowed “to enter or attempt to enter the petitioner’s place of residence, employment, education, or other locations as the court may order.” If these situations are violated, the offense is subject to criminal punishment.
On the other hand, restraining orders are issued by the magistrate court when someone is harassing or stalking another person. Harassment is broken up into first and second degrees. While stalking is defined as, “a pattern of words, whether verbal, written, or electronic, or a pattern of conduct that serves no legitimate purpose and is intended to cause and does cause a targeted person and would cause a reasonable person in the targeted person’s position to fear.”
Two types of restraining orders exist in South Carolina: ex parte temporary and final orders. Ex parte temporary orders are issued after the judge holds an emergency hearing and lasts up to fifteen days. Service of an ex parte restraining order requires a “Rule to Show Cause” to be attached. A Rule to Show Cause provides the date and time of hearing when a defendant may appear to show the judge a final order should not be entered. If a final order is entered, the order is good for at least one year, but the judge ultimately determines the length of the order. In the case an ex parte order is denied, a judge may still set a later court date to determine if a final order will be entered.
Unlike orders of protection, a restraining order may be placed against any person, and is not restricted to only household members.
If you have additional questions or need help in obtaining an order of protection or restraining order, Contact King Law at 888-748-KING (5464) for a consultation. We have offices located across western North Carolina and upstate South Carolina. King Law is here to serve you and help navigate this journey you are on.