Order of Protection

Is an Order of Protection the same thing as a Restraining Order?

Not exactly. The terms are used interchangeably, but they refer to different types of orders issued by different judges for your protection.

Restraining Orders are available in Magistrate Court to protect anyone experiencing harassment or stalking, as defined by South Carolina law. No relationship with the offender is required. Permanent Restraining Orders are sometimes available in Circuit Court for victims and prosecution witnesses after an offender is convicted of certain crimes. If you have a Restraining Order and the offender violates it, you will probably have to take them back to court to have the Restraining Order enforced and the offender punished.

An Order of Protection is a court order providing protection to you or to minor children age 18 or younger living in the home from abuse by someone with whom you have a specific familial relationship. "Abuse" means physical harm, bodily injury, assault or the threat of physical harm, or a sexual criminal offense committed by a family or household member. An Order of Protection can usually be enforced more quickly than a Restraining Order because law enforcement must respond to violations and the offender may be criminally charged.

About Orders of Protection

An Order of Protection prohibits the abuser from: abusing you, threatening to abuse you, or bothering you in any way; contacting or attempting to contact you, including through social media; coming to your home, work, school(s), children's daycare, or other place the judge includes in the order. The judge may include other relief like division of property, custody, or support in the order, but that is up to the judge.

Filing a Petition for an Order of Protection

• You can file if: (1) you or any minor children in the household, (2) has been subjected to acts or threats of physical or sexual abuse, and (3) the abuser is a spouse, former spouse, the other parent of your child, or a person you live with or used to live with romantically.
• If the abuser does not fit into one of those categories, you may need to file for a Restraining Order in Magistrate Court.
• File a Petition for an Order of Protection as soon as possible after acts or threats of physical or sexual abuse have occurred. This lets the court know you take the matter seriously and fear further abuse.
• A Petition for an Order of Protection should be filed with the Family Court Clerk of Court in the county where: 1) the abuse occurred; 2) the abuser lives (if in South Carolina); or 3) you and the abuser last lived together.
• You can also file the Petition where YOU live or where YOU are sheltered, but if the abuser lives in another county in South Carolina, you will probably have to file an additional form that moves your case to the county where the abuser lives. The clerk of court will transfer the case and the hearing will be held in the other county.
• You will need to file: the Petition for Order of Protection and Motion and Affidavit for Emergency Hearing (if requesting one); the Summons or Notice of Hearing (usually filled out by the clerk); the Financial Declaration (if you are asking for child support or spousal support); and the information sheet for the police.
• You can file a Petition for an Order of Protection yourself. Find free forms and detailed instructions at www.scorderofprotection.com or go to the Family Court Clerk of Court's Office.

After You File

The abuser will be served with the paperwork. This means that a sheriff's deputy will hand the paperwork to the abuser or another adult in the house who can accept it.

A hearing will be held. The judge will listen to both sides, review any evidence submitted by either party, and make the decision.

Duration of Your Order of Protection

The Order will last from 6 months to 1 year but may be extended if a "Motion for Extension of Order of Protection" is filed at least 30 days before the Order expires. The court can extend the Order if "good cause" is shown.

Violations of the Order of Protection

If the abuser violates the Order of Protection, they can be punished in criminal or family court. You should always call law enforcement when you are in danger. If you have an Order of Protection and the abuser violates it, law enforcement must respond, and the abuser can be arrested immediately. After a hearing is held, the abuser can be sentenced to up to 30 days in jail or a $500 fine, or up to 1 year and up to a $1,500 fine, depending on the court (criminal or family) in which the violation is presented.