Restraining Orders / Order of Protection

 

The primary duty of a law enforcement officer when responding to a domestic

abuse incident is to enforce the laws allegedly violated and to protect the abused

person if facts are found which substantiate the complaint.

 

Restraining Orders

 

Restraining Orders are civil orders granted by a Magistrate Judge to non-household

members; grants only restraint of the parties.

 

Orders of Protection (OPs)

 

  • A violation of a protective order is a criminal offense.

 

  • OPs are civil orders granted by Family Court to "Household Members"; OPs can determine restraint of parties, child custody, support and maintenance, and property division. The Family Court can give a civil penalty for contempt of court.

 

  • The duration of time an Order is valid cannot exceed one year, six month minimum.

 

  • A Magistrate may grant Orders of Protection in emergency or exigent circumstances with limited options. Municipal Court judges cannot issue emergency Orders of Protection or Restraining Orders.

 

Obtaining an Order of Protection

 

A person may petition the court for an order of protection for his or her own protection or the protection of minor household members from the abuse of another household

member. Allegations of “abuse” which must be alleged by the household member may

include:

 

  • Physical harm, bodily injury, assault, or the threat of physical harm;

 

  • Sexual criminal offenses, as otherwise defined by statute.

 

“Household members” for purposes of this act are spouses, former spouses, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited.

 

The law states that the clerk of court must provide simplified forms, which will facilitate

the preparation and filing of a petition under this section by any person not represented

by counsel. The clerk of court may not charge a fee for filing the petition for an order of

protection.


General Information about Protective Orders

 

  • Valid protective orders require law enforcement make an arrest of the violator even if the parties appear to have reconciled. If they have not had the order dismissed by the Court, the order is still good and must be enforced.

 

  • Victims should keep copies of their protective order on them at all times. An Order is valid on its face if both parties are named, it has a Judge's signature and it has not expired.

 

  • Protective orders are enforceable in any jurisdiction in South Carolina. Foreign Orders (Orders granted from other states) are given full faith and credit and are enforceable in South Carolina. A violation of a protective order is a criminal offense.

 

  • Protective orders sometimes require law enforcement to assist victims in retrieving personal belongings or gaining entry into households. The SC Code of Laws §20-4-90 states that when any order is issued under the Protection from Domestic Abuse Act, "upon request of the petitioner, the court may, as part of the order, require the sheriff's department or the police department pursuant to duties described under §20-4-100 to accompany the petitioner and assist in placing the petitioner in the possession of the dwelling or residence or otherwise assist in execution of service of the order".