If you or a family member are being abused and need an order of protection from the family court, contact your SC divorce attorney on the Axelrod team immediately to find out how to proceed and how we can help.
Below, we will go over the basics of orders of protection in SC’s family courts, including:
- What an order of protection does,
- How an order of protection is different than a restraining order,
- How to file for an order of protection in SC, and
- The potential punishments for violation of an order of protection.
What is an Order of Protection?
An order of protection is a court order from a family court judge that orders a family member to stay away from you for your protection – they cannot contact you, attempt to contact you, abuse, or threaten you for the duration of the order.
Order of Protection or Restraining Order?
An order of protection is not the same as a restraining order, although both types of orders have the same goal of protecting a person from harassment.
The order of protection is issued by the family court against a family member, while a restraining order is issued by a magistrate or circuit court judge 1) to protect against harassment or stalking or 2) to protect an alleged victim or witness in a criminal case after a defendant has been convicted.
What Does an Order of Protection in SC Do?
SC Code § 20-4-60 authorizes a family court judge to temporarily enjoin the respondent/family member from:
- “abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed,”
- “communicating or attempting to communicate with the petitioner in any way which would violate the provisions of” SC’s Protection from Domestic Abuse Act, or
- “entering or attempting to enter the petitioner’s place of residence, employment, education, or other location as the court may order.”
When the family court issues an order of protection, the court can also order custody, visitation, temporary spousal support, residence in the family home, possession of personal property, possession of pets, prohibit harm to pets, and the payment of attorney fees and costs:
When the court has, after a hearing for any order of protection, issued an order of protection, it may, in addition:
(1) award temporary custody and temporary visitation rights with regard to minor children living in the home over whom the parties have custody;
(2) direct the respondent to pay temporary financial support for the petitioner and minor child unless the respondent has no duty to support the petitioner or minor child;
(3) when the respondent has a legal duty to support the petitioner or minor children living in the household and the household’s residence is jointly leased or owned by the parties or the respondent is the sole owner or lessee, grant temporary possession to the petitioner of the residence to the exclusion of the respondent;
(4) prohibit the transferring, destruction, encumbering, or otherwise disposing of real or personal property mutually owned or leased by the parties or in which one party claims an equitable interest, except when in the ordinary course of business;
(5) provide for temporary possession of the personal property, including pet animals, of the parties and order assistance from law enforcement officers in removing personal property of the petitioner if the respondent’s eviction has not been ordered.
(6) award costs and attorney’s fees to either party;
(7) award any other relief authorized by Section 63-3-530; provided, however, the court must have due regard for any prior family court orders issued in an action between the parties.
(8) prohibit harm or harassment, including a violation of Chapter 1, Title 47, against any pet animal owned, possessed, kept, or held by:
(a) the petitioner;
(b) any family or household member designated in the order;
(c) the respondent if the petitioner has a demonstrated interest in the pet animal.
How Long Does the Order Last?
SC Code § 20-4-70 says an order of protection “must be for a fixed time not less than six months nor more than one year.” The order can be extended, however, “upon motion by either party showing good cause with notice to the other party.”
What is the Punishment for Violation of an Order of Protection?
Each order of protection must also include the potential punishment for violation of the order, including:
- Up to 30 days in jail or a fine of $200 for violation of the order of protection,
- Up to one year in prison and/or a fine of up to $1500 for contempt of court,
- If the person has been charged with domestic violence, and they “enter or remain upon the grounds or structure of a domestic violence shelter in which the person’s household member resides or the domestic violence shelter’s administrative offices,” up to three years in prison and/or a fine of up to $3000, and
- If the person possesses a dangerous weapon at the time of the violation, up to five years in prison and/or a fine of up to $5000.
How do You File for an Order of Protection in SC?
If you need to file for an Order of Protection in SC, you should call a family law attorney on the Axelrod team immediately – if you or a family member are in danger and need protection, we will meet with you as soon as possible, answer your questions, and file the necessary paperwork for you.
Where to File
SC Code § 20-4-30 says that you can file for an order of protection 1) in the family court or 2) in the magistrate court if there are no family court judges available. The case must be filed in the county where the abuse happened, where the petitioner is being sheltered, where the petitioner lives, or where the parties last lived together.
How to File
If there is already a divorce action pending in the family court, or if you have already filed an action for separate support and maintenance, your divorce lawyer can file a “Motion for Further Relief” and request an emergency hearing – if the family court judge approves, your motion will be heard ASAP, often within 24 hours.
If there is no pending divorce action, you or your attorney can file a Petition for an Order of Protection and request an emergency hearing from the court.
What Information Must be Included?
SC Code § 20-4-40 says that the Petition must be 1) filed by a household member or on behalf of a minor household member and 2) filed against a household member who is abusing someone in the home.
The Petition must specify that a household member is being abused, it must be specific about the time, place, and details of the abuse, and it should include any other information that the court will need to know before granting the Petition.
What Constitutes Abuse?
SC Code § 20-4-20 defines “abuse” as physical harm, bodily injury, assault, the threat of physical harm, or sexual criminal offenses committed against a household member by a household member.
Who is a Household Member?
SC Code § 20-4-20 defines a household member as:
(i) a spouse;
(ii) a former spouse;
(iii) persons who have a child in common;
(iv) a male and female who are cohabiting or formerly have cohabited.
Can Same-Sex Couples Get an Order of Protection?
Although SC’s legislature clearly intended to exclude same-sex couples (household members are defined as a male and female who are cohabiting or formerly have cohabited), the SC Supreme Court, in Doe v. State, has held that this is unconstitutional.
Same-sex couples can get an order of protection and are afforded the same protections under SC law as opposite-sex couples.
If you or your children are in danger and you believe an Order of Protection may help, talk to your Myrtle Beach divorce attorney on the Axelrod team as soon as possible. We can help you to secure the safety of yourself or your children by requesting an emergency hearing and an Order of Protection from the family court.