We get calls from time to time from people who want to know how to get a restraining order. Sometimes we can help and sometimes we can’t, but it is important to know when you can get a restraining order and how to do it.
There are three types of restraining orders available under SC law:
- Temporary restraining orders from a magistrate based on harassment or stalking,
- Permanent restraining orders from a circuit court judge for victims of crime or witnesses in criminal cases, and
- Orders of protection issued by the family court when someone needs protection from a household member.
If you are charged with violation of a restraining order or if you need to get a restraining order against someone, you should contact a SC criminal defense lawyer immediately – call our office at 843-444-6122 or contact us through our website for a free consultation to see if we can help.
If you need help with an order of protection in the family court, you should talk to your family court attorney or call a domestic law attorney for help. We can make a referral for you, but we do not represent clients in the family court.
Temporary Restraining Order: Harassment or Stalking
If you want a restraining order to protect you from someone who is harassing or stalking you, SC Code § 16-2-1750 authorizes SC magistrates to issue temporary restraining orders only against persons who are engaged in harassment 1st or 2nd degree or stalking.
You must file a Complaint and Motion for a restraining order in the magistrate’s court in the county 1) where the defendant lives, 2) where the harassment occurred, or 3) where you live if the defendant cannot be found.
The Complaint must:
- Allege that the defendant engaged in harassment or stalking,
- Specify what they did, where it happened, and when it happened,
- State any other facts that would justify the issuance of the restraining order,
- Be verified, and
- Inform the defendant that they have a right to counsel at the hearing on the Complaint.
SC Code § 16-3-1760 authorizes the magistrate to hold an emergency hearing within 24 hours after the Complaint is filed and issue a temporary restraining order without giving any notice to the defendant of the emergency hearing.
The temporary restraining order and Complaint must then be served on the defendant along with a “Rule to Show Cause why the order should not be extended for the full one-year period.”
Another hearing is then held, within 15 days but no less than five days after the defendant is served notice, where the magistrate can either extend the restraining order for a full year or vacate the restraining order if appropriate.
What is the Penalty for Violating a Temporary Restraining Order?
Violation of a temporary restraining order based on harassment or stalking is punishable by up to 30 days in jail.
Permanent Restraining Order: Crime Victims
SC Code § 16-3-1910 authorizes the circuit court to issue permanent restraining orders for 1) crime victims or 2) witnesses in criminal cases, but only after the defendant has been convicted.
There are two ways to get a permanent restraining order if you are a crime victim or witness in a criminal case:
- The simplest and most common way is to let the solicitor’s office’s victim’s advocate know that you want a permanent restraining order so the judge can order it as part of the defendant’s sentencing after conviction in General Sessions Court (the “criminal side” of the circuit court). You also have a right to appear at the sentencing hearing and ask the court for a restraining order.
- If you did not get the permanent restraining order at the defendant’s sentencing hearing, you can file a Summons and Complaint in the Court of Common Pleas (the “civil side” of the circuit court) and ask the court to issue the restraining order.
Emergency Restraining Orders
If you are a crime victim or witness in a criminal case who needs immediate assistance and the Court of Common Pleas is not in session, you can ask the magistrate to issue an emergency restraining order under SC Code § 16-3-1920.
The magistrate can hold an emergency hearing – within 24 hours – and can issue an ex parte restraining order once you establish that:
- The Court of Common Pleas was not in session,
- You are the victim of a crime or a witness to a crime,
- The defendant has been convicted of that crime,
- “Immediate injury, loss, or damage will result to the victim or witness” unless the magistrate issues the restraining order, and
- You were unable to serve notice of the hearing on the defendant – or “the harm that the remedy is intended to prevent would likely occur if the respondent were given prior notice.”
If the magistrate issues the restraining order, it will last for 45 days, giving you time to file a Summons and Complaint in the Court of Common Pleas to ask for a permanent restraining order.
What is the Penalty for Violating a Permanent Restraining Order?
Violation of a permanent restraining order is a felony punishable by up to five years in prison if the underlying offense was a felony. It is a misdemeanor punishable by up to three years in prison if the underlying offense was a misdemeanor.
Orders of Protection: Family Court
Another type of restraining order in SC is the Order of Protection issued by the family court to protect against harm by another household member.
If you need an Order of Protection in the family court, you should contact a family court lawyer immediately who can answer your questions and help you file the necessary paperwork.
Who Can You Get an Order of Protection Against?
Orders of Protection only apply to a household member, which is defined as a:
- Former spouse,
- Person with whom you have a child, or
- Person with whom you are cohabiting or have formerly cohabited with (this also applies to same-sex couples per the SC Supreme Court in Doe v. State).
How Do You Get an Order of Protection?
There are two ways to get an Order of Protection in the family court:
- When there is a pending divorce case, you or your attorney can file a Motion for Further Relief along with a request for an emergency hearing, or
- If there is no pending case, you can file a separate Petition for an Order of Protection and request an emergency hearing.
Our office can help to 1) get a temporary or permanent restraining order from the magistrate or Court of Common Pleas, or 2) fight charges for violating a restraining order, but you will need to contact a divorce attorney if you are seeking an Order of Protection in the Family Court.
Questions About Restraining Orders in SC?
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.