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Legal Information: South Carolina

Statutes: South Carolina

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Updated: 
December 8, 2020

16-3-1920. Emergency restraining orders; procedure.

(A) The magistrates court has jurisdiction over an action seeking an emergency restraining order.

(B) An action for an emergency restraining order must be filed in the county in which:

(1) the respondent resides when the action commences;

(2) the criminal offense occurred; or

(3) the complainant resides, if the respondent is a nonresident of the State or cannot be found.

(C) A summons and complaint for an emergency restraining order may be filed by:

(1) a victim of a criminal offense that occurred in this State;

(2) a competent adult who resides in this State on behalf of a minor child who is a victim of a criminal offense that occurred in this State; or

(3) a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.

(D) The complaint must:

(1) state that the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity;

(2) state when and where the conviction took place, and the name of the prosecuting entity and court;

(3) be verified; and

(4) inform the respondent of his right to retain counsel to represent the respondent at the hearing on the complaint.

(E) A complainant shall provide his address to the court and to any appropriate law enforcement agencies. The complainant’s address must be kept under seal, omitted from all documents filed with the court, and is not subject to Freedom of Information Act requests pursuant to Section 30-4-10, et seq. The complainant may designate an alternative address to receive notice of motions or pleadings from the respondent.

(F) The court must provide forms to facilitate the preparation and filing of a summons and complaint for an emergency restraining order by a complainant not represented by counsel. The court must not charge a fee for filing a summons and complaint for an emergency restraining order.

(G)(1) Except as provided in subsection (H), the court shall hold a hearing on an emergency restraining order within fifteen days of the filing of a summons and complaint, but not sooner than five days after service has been perfected upon the respondent.

(2) The court shall serve a copy of the summons and complaint upon the respondent at least five days before the hearing in the same manner required for service as provided in the South Carolina Rules of Civil Procedure.

(3) The hearing may be done electronically via closed circuit television or through other electronic means when possible. If the respondent is confined in a Department of Corrections facility, the complainant may come to the Department of Probation, Parole and Pardon Services in Richland County to have the hearing held electronically via closed circuit television or through other electronic means.

(4) The court may issue an emergency restraining order upon a finding that:

(a) the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable; and

(b) a restraining order has expired, is set to expire, or is not available and the common pleas court is not in session for the complainant to obtain a permanent restraining order.

In determining whether to issue an emergency restraining order, physical injury to the victim or witness is not required.

(H)(1) Within twenty-four hours after the filing of a summons and complaint seeking an emergency restraining order, the court may hold an emergency hearing and issue an emergency restraining order without giving the respondent notice of the motion for the order if:

(a) the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable;

(b) a restraining order has expired, is set to expire, or is not available and the common pleas court is not in session for the complainant to obtain a permanent restraining order;

(c) it clearly appears from specific facts shown by a verified complaint or affidavit that immediate injury, loss, or damage will result to the victim or witness before the respondent can be heard; and

(d) the complainant certifies to the court that one of the following has occurred:

(i) efforts have been made to serve the notice; or

(ii) there is good cause to grant the remedy because the harm that the remedy is intended to prevent would likely occur if the respondent were given prior notice of the complainant’s efforts to obtain judicial relief.

In determining whether to issue an emergency restraining order, physical injury to the victim or witness is not required.

(2) An emergency restraining order granted without notice must be endorsed with the date and hour of issuance and entered on the record with the magistrates court. The order must be served upon the respondent together with a copy of the summons, complaint, and a Rule to Show Cause why the order should not be extended until the hearing for a permanent restraining order.

(I) The terms of an emergency restraining order must protect the victim or witness and may include temporarily enjoining the respondent from:

(1) abusing, threatening to abuse, or molesting the victim, witness, or members of the victim’s or witness’ family;

(2) entering or attempting to enter the victim’s or witness’ place of residence, employment, education, or other location; and

(3) communicating or attempting to communicate with the victim, witness, or members of the victim’s or witness’ family in a way that would violate the provisions of this section.

(J) An emergency restraining order conspicuously must bear the following language: “Violation of this order is a felony criminal offense punishable by up to five years in prison.”

(K) The court shall serve the respondent with a certified copy of the emergency restraining order and provide a copy to the complainant and to the local law enforcement agencies having jurisdiction over the area where the victim or witness resides. Service must be made without charge to the complainant.

(L)(1) An emergency restraining order remains in effect until a hearing on a restraining order. However, if a complainant does not seek a permanent restraining order pursuant to Section 16-3-1910 within forty-five days of the issuance of an emergency restraining order, the emergency restraining order no longer remains in effect.

(2) The court may modify the terms of an emergency restraining order.

(M) Notwithstanding another provision of law, an emergency restraining order is enforceable throughout this State.

(N) Law enforcement officers shall arrest a respondent who is acting in violation of an emergency restraining order after service and notice of the order is provided. An arrest warrant is not required. A respondent who is in violation of an emergency restraining order is guilty of a felony, if the underlying conviction that was the basis for the emergency restraining order was a felony and, upon conviction, must be imprisoned not more than five years. If the underlying conviction that was the basis for the emergency restraining order was a misdemeanor, a respondent who is in violation of an emergency restraining order is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than three years, or both.

(O) Emergency restraining orders are protection orders for purposes of Section 20-4-320, the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, as long as all other criteria of Article 3, Chapter 4, Title 20 are met. However, permanent restraining orders are not orders of protection for purposes of Section 16-25-30.

(P) The remedies provided by this section are not exclusive but are additional to other remedies provided by law.