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P.
Protection From Domestic Abuse Act

1. Protection From Domestic Abuse Act

S.C. Code Ann. § 20-4-10 et seq. creates a civil cause of action known as a "Petition for an Order of Protection" to protect household members from domestic abuse. Those statutes allow a household member to seek a restraining order against another household member. Household member means spouses, former spouses, persons who have a child in common, or a male and female who are cohabiting or have formerly cohabited. § 20-4-20 (b).

While the Family Court has jurisdiction over these matters, the petition shall be filed with a magistrate during nonbusiness hours, or at other times when the Family Court is not in session. Magistrates should issue an order of protection whenever the family court in his/her county is not in session. A person requesting an order of protection should not be required to go into an adjoining county's family court to petition for an order of protection.

Actions for an order of protection must be filed in the county in which: (1) the alleged act of abuse occurred; (2) the petitioner resides or is sheltered, unless the petitioner is a nonresident of this State; (3) the respondent resides, unless the respondent is a nonresident of this State; or (4) the parties last resided together. § 20-4-65 prohibits the charging of a filing fee to a person seeking an order of protection from domestic abuse.

The magistrate may issue an order of protection "temporarily enjoining the respondent [the person allegedly causing the abuse] from abusing, threatening to abuse, or molesting the petitioner [the person allegedly suffering the abuse] or the person or persons on whose behalf the petition was filed." (§ 20-4-60[a][1]). Since the magistrate will be contacted about the filing of a Petition only when the Family Court is not in session, or during non-business hours, his role in holding hearings and issuing orders may be limited to emergency orders only. The magistrate may hold an emergency hearing (within 24 hours after service of the petition upon the Respondent) upon Petitioner's showing of good cause, by affidavit, that immediate and present danger of bodily injury exists.

If the magistrate finds good cause for an emergency hearing, he must set a date and time for the hearing, forward the Petition to the proper officials for service of process, and hold a hearing within 24 hours of the time of service of the Summons and Petition upon the Respondent. Under no circumstances may an order of protection be issued without first having given the Respondent notice of the hearing and an opportunity to be heard at that hearing. Forms for the petitions, affidavits, motions and orders are available to the Clerks of Court and the Magistrates through the Judicial Department's website at www.sccourts.org.

At the emergency hearing, a petitioner must prove “the allegation of abuse by a preponderance of the evidence.” Section 20-4-50(a). The statute further provides that “[a] prima facie showing of immediate and present danger of imminent danger of bodily injury, which may be verified by supporting affidavits, constitutes good cause for purposes of this section.” A review of these statutory prerequisites reveals that a definitive finding of physical abuse is not essential. Although the act defines “abuse” to include “physical abuse,” “bodily injury,” and “assault,” it also recognizes that “the threat of physical harm” is sufficient to constitute a basis for the issuance of an Order of Protection as the result of an emergency hearing. Section 20-4-20(a)(1). Furthermore, a showing of “immediate and present danger of bodily injury” denotes that the threat of a future occurrence provides the basis for an Order of Protection and, thus, a definitive finding of physical abuse is not mandated. Moore v. Moore, Op. No. 26429 (S.C. Sup. Ct. filed February 11, 2008).

In some instances, the respondent may request that the court issue a mutual order of protection.  SC law states that no mutual order may be granted "unless the court sets forth findings of fact necessitating the mutual order or unless both parties consent to a mutual order." (S.C. Code Ann. § 20-4-60(E)).  Issuance of a Mutual Order without considering whether both parties are, in fact, entitled to such relief, may have the unintended consequence of placing victims in further danger.  Therefore, the courts are encouraged to only issue Mutual Orders after the proper motion has been made by the respondent and upon specific findings of fact concerning the abuse and need for protection.  In order to assist other states as well as law enforcement in the enforcement of these orders, the written order of the court should contain information regarding the respondent's motion as well as the court's findings of fact.  Requiring a counter-petition or motion as well as specific findings of fact will help to ensure that this remedy is being utilized for its intended purpose, to protect individuals from domestic abuse.  See Memorandum from the Chief Justice dated May 16, 2012, in the "Memoranda" section of this Bench Book.

If mutual orders of protection have been entered that do not comply with the provisions of this section, a petitioner may request the order be vacated and all records of the order be destroyed.  (S.C. Code Ann. §20-4-60(F)).  An Order of Destruction of Temporary Restraining Order of Mutual Order of Protection (SCCA517) has been created for this purpose and can be found in the "Forms" section of this Bench Book.  If you determine a mutual order of protection is to be vacated, all records of the order must be destroyed.  You must send certified copies of the destruction order to the appropriate law enforcement agency (or agencies) that has copies of the mutual order of protection, the party whose motion is granted, and the Clerk of Court (if appropriate.)

Orders of protection issued by family court or magistrates shall include the following bolded, capitalized language:

VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE PUNISHABLE BY NOT MORE THAN THIRTY DAYS IN JAIL AND A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS OR MAY CONSTITUTE CONTEMPT OF COURT PUNISHABLE BY UP TO ONE YEAR IN JAIL AND/OR A FINE NOT TO EXCEED FIFTEEN HUNDRED DOLLARS AND/OR THREE HUNDRED HOURS OF COMMUNITY SERVICE.

The criminal violation of an order of protection is a summary court level offense, which can be heard by all summary court judges. Even though only magistrates can issue orders of protection, all summary court judges can preside over the case if someone is charged criminally with violating the order. The statute governing the criminal violation of an order of protection is § 16-25-20 (E).