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Q.
Harassment and Stalking

Any person may seek a restraining order against an individual who is engaged in harassment or stalking. S.C. Code Ann. § 16-3-1750(A) vests magistrates with jurisdiction over an action seeking a restraining order. A restraining order may be issued: 1) with prior notice of a hearing to the defendant and 2) without notice to the defendant in an emergency situation.

1. Issuance of Order With Notice of Hearing

a. Insure that the party is filing in the proper county. § 16-3-1750(B) provides that an action for a restraining order must be filed in the county in which (1) the defendant resides when the action commences; (2) the harassment in the first or second degree or stalking occurred; or (3) the plaintiff resides if the defendant is a non-resident of the State or cannot be found.

b. Effective January 1, 2006, § 16-3-1750(D) prohibits the court for charging a fee for filing a complaint and motion for a restraining order against a person engaged in harassment or stalking. However, the court shall assess a filing fee against the non-prevailing party in an action for a restraining order. The court may hold the person in contempt for failure to pay this filing fee (currently $55.00).

c. The party must complete a complaint and motion for restraining Order. § 16-3-1750(C). The complaint and motion, along with a summons, must be served upon the defendant at least five days before a hearing on the matter. Service must be made personally or by certified mail, return receipt requested. The hearing must be held within fifteen days of the filing of the complaint and motion but not sooner than five days after service has been perfected upon the defendant. § 16-3-1760(C) and (D).

d. At the hearing, the plaintiff must prove by a preponderance of the evidence that the defendant has been engaged in harassment or stalking. The magistrate should complete a restraining order, and indicate in the appropriate spot on the order whether the plaintiff has met the required burden of proof.

e. The possible terms of a restraining order issued pursuant to this Act are found at § 16-3-1770(B). That statute provides that the court may enjoin the defendant from (1) abusing, threatening to abuse, or molesting the plaintiff or members of the plaintiff's family; (2) entering or attempting to enter the plaintiff's place of residence, employment, education, or other location; and (3) communicating or attempting to communicate with the plaintiff in a way that would violate the provisions of the harassment and stalking laws. If the court determines that the order should be issued, the judge should simply check the terms that apply.

f. A restraining order issued pursuant to this Act must be for a fixed period not to exceed six months. Effective January 1, 2006, a restraining order issued to pursuant to these statutes remains in effect for a fixed period of time of not to exceed one year, as determined by the court on a case by case basis. The order may be extended by the court upon notice to the defendant and good cause shown by the plaintiff at a hearing. The defendant is entitled to a hearing on the extension of an order within thirty days of the date upon which the order will expire. Otherwise, the order dissolves six months after issuance, or, for those orders issued after January 1, 2006, one year after its issuance. If the defendant is charged with harassment or stalking prior to the expiration of the order, it remains in effect until the conclusion of the trial. § 16-3-1780. A restraining order issued pursuant to this Act is enforceable statewide.

g. A certified copy of the order must be served on the defendant. A copy must be provided to the plaintiff and to the local law enforcement agencies that have jurisdiction over the plaintiff. Service must be made without charge to the plaintiff. § 16-3-1790. Any violation of an order is a criminal offense punishable by 30 days in jail, a $500 fine, or both. § 16-3-1770(C).

h. Forms have been developed for use with these actions. SCCA-749, Complaint and Motion for a Restraining Order, SCCA-750, Summons, and SCCA-751, Restraining Order, may all be found in the "Forms Section."

2. Issuance of Order Without Notice

a. Insure that the party is filing in the proper county. § 16-3-1750(B) provides that an action for a restraining order must be filed in the county in which (1) the defendant resides when the action commences; (2) the harassment in the first or second degree or stalking occurred; or (3) the plaintiff resides if the defendant is a non-resident of the State or cannot be found.

b. Effective January 1, 2006, § 16-3-1750(D) prohibits the court for charging a fee for filing a complaint and motion for a restraining order against a person engaged in harassment or stalking. However, the court shall assess a filing fee against the non-prevailing party in an action for a restraining order. The court may hold the person in contempt for failure to pay this filing fee (currently $55.00).

c. The plaintiff has the right to request an emergency hearing and, for good cause shown, the court must hold a hearing on the motion without notice to the defendant within twenty-four hours of the filing of the motion. Such a request is made by plaintiff's filing of a motion and affidavit for emergency hearing. A prima facie showing of present danger of bodily injury constitutes good cause. § 16-3-1760(A).

d. At the emergency hearing, the plaintiff must prove the allegations contained in the complaint by a preponderance of the evidence. If the plaintiff meets this burden, the court should complete a temporary restraining order. The terms of a temporary restraining order are the same as those found in § 16-3-1770(b) that apply to a permanent order. This order is temporary in nature and remains in effect only until a rule to show cause hearing is held to determine why the order should not be extended to the full six month period (for those orders issued on or after January 1, 2006, one year period) with notice of the hearing being given to the defendant.

e. A copy of the temporary restraining order, a copy of the complaint, and rule to show cause must be immediately served on the defendant. Service must be accomplished personally or by certified mail, return receipt requested. The rule to show cause hearing must be held within five (5) days of service on the defendant. § 16-3-1760(B).

f. Forms have been developed for use with these actions. SCCA-749, Complaint and Motion for a Restraining Order, SCCA-751, Restraining Order, SCCA-752, Motion and Affidavit for Emergency Hearing, SCCA-753, Temporary Restraining Order, and SCCA-755, Rule to Show Cause may all be found in the "Forms Section."

g. Per §16-3-1760(E), upon motion of a party, the court may determine that a temporary restraining order was improperly issued due to unknown facts.  The court may order the temporary restraining order vacated and all records of the improperly issued restraining order destroyed.  This would require a hearing with all parties to the action given notice and an opportunity to be heard.  An Order of Destruction of Temporary Restraining Order or Mutual Order of Protection (SCCA517) has been created for this purpose and can be found in the "Forms" section of the Bench Book.  If you determine a temporary restraining order 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 temporary restraining order, the party whose motion is granted, and the Clerk of Court (if appropriate).