This guide will provide information about each of the four civil protection order (also known as restraining order) remedies available in South Carolina, explaining what protections they offer, who qualifies, where to file, and other important information. For more information about the criminal process, we recommend the Crime Victim Survival Guide published by SCVAN.
Continuance: postponement, rescheduling of a hearing or trial until a later date; continuances are granted by the judge on a case-by-case basis.
Defendant/Respondent: the person against whom a case is brought; the person who is alleged to have committed abuse. Defendant is used in Restraining Order cases. Respondent is used in Order of Protection, Permanent, and Emergency Restraining Order cases.
Petition/Complaint: the court document that contains the formal request seeking the court order. Petition is used in Order of Protection cases. Complaint is used in Restraining Order, Permanent, and Emergency Restraining Order cases.
Petitioner/Plaintiff/Complainant: the person who is filing a case for civil protection; the person who alleges having been abused. Petitioner is used in Order of Protection cases. Plaintiff is used in Restraining Order cases. Complainant is used in Permanent and Emergency Restraining Order cases.
Prima Facie Case: a court finding that there is sufficient evidence for a case to proceed; the petitioner/plaintiff/complainant has alleged facts that, if proven true, demonstrate s/he is eligible for protection
Service: the delivery of copies of court filings to the party to whom the filings are directed in a way that meets legal requirements. Service provides parties with notice of actions taken in a court case. The Sheriff’s Department typically completes service of the petition/complaint in Order of Protection and Restraining Order cases.
Pled Down: a criminal offense is “pled down” when an offender was initially charged with a more serious offense, but admitted to and was convicted of a lesser offense.
Civil protection orders provide survivors with legally enforceable protection from certain people who are harming them. Also known as “restraining orders,” civil protection orders offer different forms of protection to survivors, including some forms of relief that are not available through the criminal justice system. As civil actions, civil protection order cases are controlled by the survivor and are resolved on a much quicker timeline than the criminal justice system provides.
Civil protection order cases are independent from any actions (pending or not) in the criminal justice system. This means that the survivor generally can seek these civil remedies regardless of whether criminal charges are pending or have been brought against the abuser. Nevertheless, if a civil protection order is violated, it can be enforced either through criminal prosecution or through motions for criminal or civil contempt in the civil case.
In South Carolina there are four different civil protection order remedies: Orders of Protection, Restraining Orders, Permanent Restraining Orders, and Emergency Restraining Orders. Each has different requirements to qualify, lengths of time they are in effect, types of protection offered, and filing processes. Survivors may qualify for more than one remedy. The following sections will discuss each remedy in more detail. General information about the different types of courts in South Carolina is available from the South Carolina Judicial Branch.
Orders of Protection are available in Family Court only to those who have been subjected to acts or threats of physical or sexual abuse and share certain relationships with the person who abused them. Orders of Protection offer a wide range of remedies for the survivor.
Who qualifies?
In order to receive this remedy, the survivor must share a specific relationship with the abuser and must have been subject to certain conduct.
First, a survivor must prove she shares a qualifying relationship with the respondent, either:
- Current or Former spouses
- Co-parents (who share a child in common)
- Current or former co-habitants (of any gender)
Although the Protection from Domestic Abuse Act does not define “co-habitant,” it is generally understood in South Carolina Family Law to mean people currently or previously living together in an intimate relationship. Persons living together in same-sex intimate partner relationships qualify to seek Orders of Protection. Although the statute limits its protections to “a male and a female who are cohabiting or have cohabited,” the South Carolina Supreme Court held in the case of Doe v. State that same-sex cohabitants have the right to seek Orders of Protection. [1]
Second, a survivor must prove she has been subjected to qualifying conduct, including:
- Physical Harm
- Bodily Injury
- Assault [2] (unlawfully injuring or attempting to injure and other person with the present ability to do so)
- Threat of physical harm OR
- Sexual criminal offenses [3] committed by family or household member (including sexual battery accomplished by force or coercion, as well as others).
Duration and Remedies
If a survivor proves her case, the Family Court will issue an Order of Protection for a period between six months to one year. Survivors can request the court to enter the Order for a particular length of time and explain why they seek protection for that time period. Survivors can request the court to include a number of different remedies within an Order of Protection, depending upon their circumstances. Available remedies include orders:
That the Respondent not abuse, threaten to abuse, molest the survivor or the survivor’s pet, or use or threaten physical force against the survivor,
That the Respondent not communicate with the survivor
That the Respondent not enter the survivor’s residence, school, or workplace or other locations designated by the court (a survivor should ask the court to include any such additional places and be prepared to explain why she needs/wants the Respondent to be ordered to stay away)
Awarding the survivor temporary possession of a residence the parties’ share (if the Respondent owes a duty to support the survivor or minor children in the household); even if Respondent is the sole owner or lessee
- Establishing temporary custody and visitation arrangements
- Awarding temporary financial support and temporary child support (if the Respondent has a duty to support the survivor and/or children they share)
- Awarding temporary possession of personal property and pets
- Awarding attorneys’ fees and costs
- Prohibiting a Respondent from possessing firearms (if the court finds that Respondent caused or threatened physical harm or assault and the court orders the firearm prohibition).
In addition, upon entry of an Order of Protection, federal law prohibits the Respondent from possessing firearms if the court finds that the Respondent is a credible threat to the survivor or the Order of Protection prohibits the use or threat of physical force against the survivor.
Because Orders of Protection offer so many forms of relief, they often are the best option for people who might qualify for more than one type of protection order. If a survivor is unsure about which type of order to seek, s/he should consult with an attorney. The South Carolina Coalition Against Domestic Violence and Sexual Assault might be able to assist survivors to connect with experienced counsel, and maintains a compilation of organizations that provide legal and social services to people who have experienced abuse.
Process
A Petition for an Order of Protection must be filed in Family Court. There is no filing fee. Survivors should file in the Family Court in the county where (1) the abuse occurred, (2) the Respondent lives (unless resides out of state), or (3) the survivor last lived with the Respondent. It is also possible to initially file the Petition in the county where the survivor lives or is sheltered, but before trial the case will be transferred to a county that falls under one of the other three categories. The court must schedule a hearing in the case within 15 days after filing and will arrange for the Sheriff’s Department to serve the Respondent with a copy of the Petition and notice of the hearing. If the Respondent is served less than 5 days before the hearing, the Respondent has the right to ask the court to “continue,” or delay the hearing to a later date.
If the case is continued, in some counties, judges routinely issue a “Temporary Restraining Order” prohibiting the Respondent from contacting the survivor or attempting to enter the survivor’s home, school, or workplace until the next hearing in the case; in others, judges only sometimes take this step; and in still others, judges rarely or never do so. It is important to know how the Family Court handles Temporary Restraining Orders in the county where the survivor will file so that the survivor understands whether temporary protection is available while the case is pending.
Emergency Relief
Survivors who desire immediate protection from the court can request an emergency hearing in their Order of Protection case. Emergency hearings generally are scheduled within 24–48 hours of filing. To obtain an emergency hearing, the survivor must file a Motion for Emergency Hearing at the time s/he files the Petition. The survivor must show “good cause,” which includes evidence that the survivor faces an immediate and present danger of bodily injury. The survivor must describe the circumstances that s/he believes show “good cause” in the motion and may also submit affidavits from other witnesses to support the motion. The court will decide whether to grant an emergency hearing based on what the survivor writes in the motion and any affidavits the survivor submits.
In order for the court to be able to issue an Order of Protection at an emergency hearing, the Respondent must be served before the hearing takes place. The Sheriff’s Department will attempt to serve the Respondent before the hearing. If the Respondent is served, the emergency hearing can take place, a final Order of Protection can be entered, and the case can be resolved. If the Respondent has not been served before an emergency hearing, the case will be “continued,” or rescheduled for a future date. In some counties, judges routinely issue a “Temporary Restraining Order” prohibiting the Respondent from contacting the survivor or attempting to enter the survivor’s home, school, or workplace until the next hearing in the case; in others, judges only sometimes take this step, and in still others, judges rarely or never do so. It is important to know how the Family Court handles Temporary Restraining Orders in the county where the survivor will file so the survivor understands whether temporary protection is available while the case is pending.
Additional Resources
For more information regarding Orders of Protection and related court proceedings, we recommend consulting:
Self-Help Order of Protection Forms: This link directs to a guided interview that results in a completed Petition for an Order of Protection that can be filed with the Family Court. [4]
Filing for an Order of Protection in South Carolina [pdf]: Detailed guide created by South Carolina Legal Services to the Order of Protection remedy and process. [5]
Model Order of Protection Hearing Videos: Video demonstrations of how Order of Protection hearings proceed in Family Courts for parties represented by attorneys and parties representing themselves. [6]
[1]Doe v. State, 421 S.C. 490, 808 S.E.2d 807 (2017)
[2] For more details about the definition of assault see SC Code Ann. §16-3-300
[3] For more information about sexual criminal offenses, see: SC Code Ann. § 16-3-651-656.
[4] https://www.lawhelp.org/sc/resource/self-help-order-of-protection-forms
[5] https://www.sccourts.org/selfhelp/orderofprotectionmanual.pdf
[6] https://www.lawhelp.org/sc/issues/domestic-violence/orders-of-protection-and-restraining-orders
Restraining Orders are available in the Magistrate Court to protect anyone who is experiencing harassment or stalking.
Who qualifies?
Anyone who has been subjected to harassment or stalking can seek a Restraining Order. There is no requirement that the parties share any particular relationship. Parties who share relationships that make them eligible for Orders of Protection also are eligible to seek Restraining Orders if they have experienced stalking or harassment. [7]
Experiencing any one of three types of conduct qualifies a survivor to seek a Restraining Order: (1) harassment in the first degree, (2) harassment in the second degree, or (3) stalking.
(1) Harassment in the first degree occurs when the Defendant causes the survivor emotional
or
mental distress through actions like:
- Following the survivor,
- Watching the survivor or being around the survivor’s home, work, school, or other place the survivor frequents,
- Damaging the survivor's property,
- Contacting the survivor multiple times even though the survivor has told the Defendant not to do so or the survivor has filed a police report about the unwanted contact
There must be a pattern of this behavior, so it must have occurred two or more times. The Defendant’s actions have to be on purpose, unreasonable, and serve no legitimate purpose. The Defendant’s actions also have to be a “substantial intrusion” on the survivor’s life, which means the actions must be more than a minor annoyance.
(2) Harassment in the second degree occurs when the Defendant causes the survivor emotional
or mental distress through actions like repeated contact through verbal, written,
or electronic means.
There must be a pattern of this behavior, so it must have occurred two or more times. The Defendant’s actions have to be on purpose, unreasonable, and serve no legitimate purpose. The Defendant’s actions also have to be a “substantial intrusion” on the survivor’s life, which means more than a minor annoyance.
(3) Stalking occurs when the Defendant makes the survivor fear that the Defendant will harm
the survivor or the survivor’s family or damage the survivor’s property, through something
the Defendant says, writes, or does. The Defendant’s conduct must serve no legitimate
purpose. In addition, the Defendant’s conduct must be intended to cause and must actually
cause the survivor to fear that one of the following would happen to them or a member
of their family:
- Death
- Assault
- Bodily injury
- Criminal sexual conduct
- Kidnapping
- Property damage
“Family” for this purpose means a spouse, child, parent, sibling, or household member of the survivor. There must be a pattern of this behavior, so it must have occurred two or more times.
Duration and Remedies
Restraining Orders are granted for one year. Available remedies within a Restraining Order include orders that the Defendant:
- Not abuse, threaten or molest the survivor and members of the survivor’s family (including a spouse, child, parent, sibling, or household member)
- Not enter the survivor’s home, school, workplace, or other locations designated by the court
- Not communicate with the survivor
Upon entry of a Restraining Order, federal law prohibits the Defendant from possessing firearms if the parties are current or former spouses, co-parents, or co-habitants and the court finds that the Defendant is a credible threat to the survivor, or the Restraining Order prohibits the use or threat of physical force.
Process:
A Complaint and Motion for a Restraining Order must be filed in the Magistrate Court located in the county where the abuser lives or where the harassment or stalking occurred. If the Defendant cannot be found or lives out of state, the Complaint can be filed in the county where the survivor lives. Counties that have several Magistrate Offices may require Complaints to be filed in a particular Office. In Richland County, Complaints may be filed at the Central Magistrates Court or at individual Magistrate Offices. There is no fee charged at the time when the Complaint is filed but whichever parties loses the case will have to pay $55 to the court. It is possible to seek a waiver of the filing fee and to ask the court for a payment plan. Parties should make these requests to the judge at the hearing.
The court must schedule a hearing in the case within 15 days after the Complaint is filed and will arrange for the Sheriff’s Department to serve the Defendant with a copy of the Complaint and notice of the hearing. If the Defendant is served less than 5 days before the hearing, the Defendant has the right to ask the court to “continue” or delay the hearing to a later date.
Emergency Relief:
Survivors who desire immediate protection from the court can file a Motion for a Temporary Restraining Order when they file their Complaint. The Magistrate Court will hold a hearing within 24-48 hours of filing to decide whether to grant the request. Temporary Restraining Orders are granted ex parte, which means without notifying the Defendant in advance, and are intended to protect the survivor in the time between the filing of the Complaint and the hearing in the case. To obtain a Temporary Restraining Order, the survivor must prove good cause, which includes evidence that the survivor faces a present danger of bodily injury from the Defendant.
Additional Resources
For more information regarding Restraining Orders and related court proceedings, we recommend consulting:
A Plaintiff’s Guide to Restraining Orders: provides an overview of the Restraining Order remedy and process, including what is needed to qualify and what to bring to court. [8]
A Defendant’s Guide to Restraining Orders: provides an overview of the Restraining Order remedy and process, including what a Plaintiff must prove and what to bring to court. [9]
Timeline of a Restraining Order Case: graphic that shows the typical timeline of a Restraining Order case. [10]
Restraining Orders: What to Bring to Court: flyer with tips about evidence a survivor should bring to a hearing in a Restraining Order case. [11]
[7] Magistrate courts may be limited in the types of remedies they can order if the parties are married or have a child in common. Because Orders of Protection offer so many forms of relief, they often are the best option for people who might qualify for more than one type of protection order. If a survivor is unsure about which type of order to seek, s/he should consult with an attorney.
A Permanent Restraining Order is available to victims of or witnesses to certain crimes if the Respondent is convicted of the offense in South Carolina and the complainant suffers harm. Permanent Restraining Orders are available either at time of the sentencing in the criminal case in the General Sessions Court or through a separate civil case after sentencing in the Court of Common Pleas.
Permanent Restraining Orders can truly be permanent or can be entered for a specific duration such as ten or twenty years.
Who qualifies?
Anyone who is a victim or a witness to a qualifying crime may seek a Permanent Restraining Order if the crime occurred in South Carolina, the respondent was convicted or plead guilty, and the Complainant suffered direct or threatened physical or psychological harm as a result of the crime. Qualifying crimes include: [12]
- Harassment 1st degree
- Harassment 2nd degree
- Stalking
- Being in possession of a firearm while subject to a court order that prohibits possessing a firearm, including within a domestic violence conviction or an Order of Protection
- Domestic violence of a high and aggravated nature
- Criminal sexual offenses on the sex offender registry
- Criminal sexual conduct offenses pled down to assault and battery
- Domestic violence offenses pled down to assault and battery or assault and battery of a high and aggravated nature
- Attempt of any of the above offenses (this means that the offender had the intention of committing the offense and took steps towards committing that offense, but the offense was ultimately not carried out – the offender did more than just say they would commit the offense: they tried to do it).
The Complainant is not required to show s/he has suffered physical injury to obtain a Permanent Restraining Order.
Duration and Remedies
Permanent Restraining Orders are entered for a time period determined by the court. Survivors should be prepared to tell the court for how long they would like the Order in place and explain why that length of time is desired. Available remedies within a Permanent Restraining Order include orders that the Respondent:
- Not abuse, threaten or molest the survivor and members of the survivor’s family (including a spouse, child, parent, sibling, or household member)
- Not enter the survivor’s home, school, workplace, or other locations designated by the court
- Not communicate with the survivor and members of the survivor’s family (including a spouse, child, parent, sibling, or household member)
Upon entry of a Permanent Restraining Order, federal law prohibits the Defendant from possessing firearms if the parties are current or former spouses, co-parents, or co-habitants and the court finds that the Defendant is a credible threat to the survivor or the Permanent Restraining Order prohibits the use or threat of physical force.
Process
A Permanent Restraining Order may be obtained during the Respondent’s sentencing for the criminal offense if the case takes place in the Court of General Sessions (the criminal part of the Circuit Court). The solicitor in the criminal case typically makes this request on behalf of the victim or witness during sentencing. If this does not occur, or if the criminal case takes place in Magistrate Court, a survivor can seek a Permanent Restraining Order on her own by filing a Complaint for a Permanent Restraining Order in the Court of Common Pleas (the civil part of the Circuit Court). The Complaint may be filed in the Circuit Court in county where the Respondent lives or where the criminal offense occurred. If the Respondent does not reside in South Carolina or if the Respondent cannot be found, the Complaint may be filed in the county where the survivor resides. There is no filing fee. The Complainant’s address must be kept under seal by the court and omitted from all documents in the case.
Cases for Permanent Restraining Orders move more slowly than those for the other types of civil protection orders in South Carolina. For the case to proceed, the survivor must arrange for the Respondent to be served with the Summons and Complaint. [13] After the Respondent is served, the Respondent has 30 days to file an Answer in the case.
When possible, the hearing in the case may be held electronically via closed circuit television or through other electronic means. If the Respondent is imprisoned in a South Carolina Department of Corrections facility, the Complainant may appear at the Department of Probation, Parole and Pardon Services in Richland County to participate in an electronic hearing. Complainants who wish to hold the hearing electronically may make that request when the case is filed.
Emergency Relief
There is not a process for seeking emergency relief within a Permanent Restraining Order case. Complainants who want protection while a case for a Permanent Restraining Order is pending must file a separate case for an Emergency Restraining Order in Magistrates Court.
[12] SC Code Ann. §16-3-1910
[13] For more information on filing a civil case in Circuit Court and service of process, see the Circuit Court FAQs Guide prepared by the South Carolina Courts. https://www.sccourts.org/selfhelp/FAQCircuit.pdf
Emergency Restraining Orders are available in Magistrates Court to survivors who are eligible for a Permanent Restraining Order and who do not currently have a Restraining Order against the Respondent or have a Restraining Order that is expiring or has expired. This can be beneficial if a survivor is concerned about pursuing a Permanent Restraining Order without having legal protection in place.
Who Qualifies?
A survivor who qualifies for Permanent Restraining Order and does not currently have a Restraining Order in place against the Respondent (or has one that is about to expire) may seek an Emergency Restraining Order. This means that the person seeking an Emergency Restraining Order:
- must have been a victim of or witness to a qualifying crime, that is:
- the crime must qualify for a Permanent Restraining Order,
- the crime must have occurred in South Carolina, and
- the Respondent must have been convicted of or pled guilty to that crime in South Carolina,
- must have suffered physical or psychological harm as a result of that crime, and
- must not have a Restraining Order in place against the Respondent (or must have one that is about to expire).
The Complainant is not required to show s/he has suffered physical injury to obtain an Emergency Restraining Order.
Duration and Remedies
Once granted, Emergency Restraining Orders remain in effect until the hearing takes place in Circuit Court on the survivor’s Complaint for a Permanent Restraining Order. The Emergency Restraining Order will expire after forty-five days if a survivor does not ultimately file a Complaint for Permanent Restraining Order. Available remedies within an Emergency Restraining Order include orders that a Respondent:
- Not abuse, threaten, or molest the survivor, witness, or member of the survivor’s or witness’ family (including a spouse, child, parent, sibling, or household member)
- Not enter or try to enter the survivor’s or witness’ home, work, school, or other location and
- Not communicate or try to communicate with the survivor, witness, or survivor’s or witness’ family (including a spouse, child, parent, sibling, or household member)
Process
A Complaint for an Emergency Restraining Order must be filed in Magistrate Court. The Complaint must be filed in the county where the Respondent lives or the criminal offense occurred. If Respondent is not a resident of the State or cannot be found, the Complaint may be filed in the county where the Complainant lives. There is no filing fee. The Complainant’s address must be kept under seal by the court and omitted from all documents in the case.
The Magistrate Court must schedule a hearing to occur within fifteen days of the filing of the Complaint. The court must schedule a hearing in the case within 15 days after the Complaint is filed and will arrange for the Sheriff’s Department to serve the Respondent with a copy of the Complaint and notice of the hearing. If the Respondent is served less than 5 days before the hearing, the Respondent has the right to ask the court to “continue” or delay the hearing to a later date.
When possible, the hearing in the case may be held electronically via closed circuit television or through other electronic means. If the Respondent is imprisoned in a South Carolina Department of Corrections facility, the Complainant may appear at the Department of Probation, Parole and Pardon Services in Richland County to participate in an electronic hearing. Complainants who wish to hold the hearing electronically may make that request when the case is filed.
Emergency Relief
Complainants who feel in need of immediate protection can file a Motion and Affidavit for Emergency Hearing at the time when they file the Complaint. The Motion requests the court to hold an emergency hearing and issue an Emergency Restraining Order ex parte, which means without notifying the Respondent in advance. In addition to showing that s/he is eligible for an Emergency Restraining Order, generally, to obtain an Emergency Restraining Order ex parte at an emergency hearing, a Complainant must:
- Present specific facts that show the Complainant will suffer immediate injury, loss, or damage if the court does not act before the Respondent is notified about the case; and
- Certify that the one of the following has occurred:
- Efforts have been made to serve the Respondent with notice, OR
- There is good cause to grant the Emergency Restraining Order without notice because the harm the Order is intended to prevent would likely occur if Respondent were given prior notice.
The Complainant is not required to show s/he has suffered physical injury to obtain an Emergency Restraining Order ex parte.
If the court grants an ex parte Emergency Restraining Order, it will cause the Respondent to be served with that Order along with the Summons and Complaint for an Emergency Restraining Order, and an Order for the Respondent to Show Cause why the ex parte Order should not be extended until a hearing in the Permanent Restraining Order case.