When people believe they are being stalked or harassed, they sometimes seek restraining orders to stop this behavior. Restraining orders are a subset of the broader category of protective orders under South Carolina law.
Restraining orders can be issued by a magistrate. Once someone files a restraining order, a hearing is set.
If the magistrate deems it necessary, he or she can issue a temporary restraining order covering the time between the filing and the hearing. A temporary restraining order is effective immediately.
If this happens, the court will attempt to notify the restrained person quickly by serving papers in person or by certified mail.
The person seeking the restraining order is called the “plaintiff.” The other party is the “defendant.”
At the hearing, the magistrate decides whether to issue the restraining order. If the magistrate grants the order, the defendant cannot do several things:
- abuse or threaten to abuse the plaintiff or plaintiff’s family members
- enter or attempt to enter the plaintiff’s residence, place of employment or school
- communicate or attempt to communicate with the plaintiff
South Carolina law does not dictate a particular distance the plaintiff and defendant must keep between one another. It's the defendant’s responsibility to abide by the order, but the plaintiff must act in good faith, as well. The consequences for violating a restraining order give the defendant incentive to abide by it.
Consequences of violating a restraining order
If you have a restraining order against you, you need to take it seriously. Violating the restraining order can get you up to 30 days in jail and a $500 fine. If you’re charged with domestic violence and go to the shelter where the alleged victim is staying, you could be punished with up to three years in jail. If you bring a weapon, the sentence goes up to five years.
Restraining order violations are taken very seriously, so you want to be sure you’re informed about how a restraining order restricts you and what the implications are for your life.
Common questions about restraining orders
If you 've had a restraining order sought against you, you are bound to have a lot of questions. Here are answers to some of the most common ones our clients ask us.
Can I fight a restraining order?
Yes, you can fight a restraining order. Before a restraining order is issued, the defendant is notified of the hearing date and location for contesting it. If a judge deems the order an emergency, the judge can issue a temporary order. This order lasts until the hearing can be held. The temporary order cannot be contested because it's issued in an emergency.
The hearing must be held within 15 days of the temporary restraining order’s issuance.
What is the difference between a restraining order and an order of protection?
A restraining order is a particular type of protective order. Usually, orders of protection are issued by a family court judge because of abusive behavior between certain adults. An order of protection can be issued against a “family member” as defined by SC law which includes:
- Former spouses
- People who have a child in common
- A male and female who are living together
- A male and female who used to live together
Restraining orders are issued in magistrate court. Their purpose is to keep two unrelated people apart because of one person’s stalking or harassment of the other person.
What is the difference between a restraining order and an injunction?
An injunction typically involves business dealings. So it's completely different than a restraining order. Before an injunction is decided in court, a judge can issue a temporary restraining order on the matter. However, this is a completely different use of the term “restraining order.”
What is the difference between a restraining order and a no contact order?
A restraining order is not the same thing as a no contact order.
A no contact order can be issued by a judge as part of a bond condition. A judge issues a no contact order as a condition of being let out of jail between the bond hearing and conclusion of the criminal trial. The no contact order prohibits the person accused of the crime from contacting the alleged victim in any way. This includes phone calls, email and social media.
Is getting a restraining order against me a felony?
Getting a restraining order against you is not a crime, so it's neither a misdemeanor nor a felony.
When do restraining orders expire?
Generally, restraining orders last for one year. But the judge who issued the order can extend this period under certain circumstances. If the defendant is facing a criminal charge for stalking or harassment, the order remains in effect through the trial.
Will getting a restraining order against me violate probation?
No. Having a restraining order placed against you is not a probation violation. However, the act that caused someone to seek a restraining order against you may be a probation violation.
Are restraining orders criminal or civil actions?
Restraining orders are civil actions; however, violating a restraining order can result in contempt of court charges. This violation is punishable by up to 30 days in jail and/or a $500 fine.
Will a restraining order affect my military career?
A restraining order by itself shouldn’t affect your military career. Criminal convictions associated with the restraining order can cause issues for your service. You should check with your recruiter to determine if you are eligible for military service.
Can a restraining order be dropped?
A judge can lift a restraining order, but the judge will almost always require the plaintiff’s consent.
Will a restraining order appear in a background check?
Most background checks only look at criminal records. Since a restraining order is not a criminal issue, it does not appear on most background checks.
Will a restraining order impact my ability to carry a gun?
No, a restraining order issued in magistrate court will not affect your ability to carry a gun. However, a protective order issued in family court will prohibit you from carrying a gun.
Protecting your legal rights
At its core, a restraining order placed against you restricts your right to do particular things and go particular places. Before you are stripped of these rights, you are entitled to due process of law.
If you have violated a restraining order in SC, take full advantage of your legal rights. Get help from a Columbia, SC criminal defense attorney who can help you make important legal decision. Call The Giese Law Firm at 803-708-6767 or using this online form.
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