Restraining Orders

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

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, you will probably have to take the offender back to court for relief.

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 Restraining Orders (Stalking and Harassment)

• A Restraining Order is intended to keep the offender from contacting, threatening, or coming near you or your family.
• Anyone can file a Complaint and Motion for a Restraining Order. There is no specific relationship required between the victim and the offender. The focus is on the conduct, not the type of relationship between the parties.

How to File for a Restraining Order

• File a Complaint and Motion for a Restraining Order as soon as possible after the requirements for establishing harassment or stalking have been met.
• You can file a Complaint and Motion for a Restraining Order on your own. No fee is required at the time of filing; however, the losing party will be required to pay the $55 filing fee after the hearing.
• The Complaint and Motion for a Restraining Order should be filed with the Magistrate Court in the county where (1) the offender lives, (2) the stalking/harassment occurred, or (3) you live (if the offender does not live in South Carolina or cannot be found).
• A hearing will be scheduled with the Magistrate Court. You will need to speak in court and provide as much additional evidence as possible about the stalking or harassment. If there are witnesses to the stalking or harassment, they should go to court with you. You may want an attorney to go with you to your hearing.

Permanent Restraining Orders

• If you are (1) a victim of certain crimes, such as domestic violence, stalking, harassment, or sexual assault; (2) an adult acting on behalf of a minor child who was a victim of such a crime; (3) or a witness who assisted in the prosecution of an offender for committing such a crime; AND (4) you (or the minor child) suffered some type of harm as a result of the crime, you may file for a Permanent Restraining Order after the offender is convicted.
• You can ask for a Permanent Restraining Order in General Sessions Court when the offender is convicted. If you do not ask for an order at that time, or the conviction occurred in Magistrate Court, you can file a complaint in the Court of Common Pleas in the county where (1) the offender lives, (2) the criminal offense occurred; or (3) you live (if the offender does not live in South Carolina or cannot be found).
• The Solicitor typically requests a Permanent Restraining Order for you at the time of the conviction. If this does not occur and you need to file a Summons and Complaint in the Court of Common Pleas, you should contact an attorney to assist you with that process.

Mutual Restraining Orders

A Mutual Restraining Order prevents both parties from doing something. Sometimes judges issue Mutual Restraining Orders not to harass each other instead of granting an Order of Protection. Mutual Restraining Orders have the same effect and consequences for both people and do not imply that one person is at fault.

Facts About Restraining Orders in Divorce Decrees

A restraining order is simply an order from the court telling someone NOT to do something. If that person does it anyway, they can face contempt penalties, including jail time or fines. The restraining order could deal with the abuse, such as a restraining order against the abuser not to harass you. Or it could be something completely different, such as a restraining order not to sell property that you have in common with your spouse.

Enforcement of Restraining Orders

You should always call law enforcement when you are in danger. If your abuser violates a Restraining Order, you will probably have to take them back to court for relief.