What is a protection order?
A protection order (sometimes called a restraining order) is paper which is signed by a judge and tells your abuser to stop the abuse or face serious legal consequences. It offers civil legal protection from domestic abuse to both women and men victims. A protection order can protect you for up to five years.1
1 SDCL § 25-10-1(3)
What is the legal definition of domestic abuse in South Dakota?
This section defines domestic violence for the purposes of getting a protection order against domestic abuse. Domestic violence in South Dakota is when a family or household member does any of the following to you:
- causes physical harm or bodily injury;
- attempts to cause physical harm or bodily injury;
- inflicts fear of imminent physical harm or bodily injury; and/or
- stalks you.1
1 SDCL § 25-10-1(1)
What types of protection orders against domestic abuse are available? How long do they last?
There are two types of protection orders against domestic abuse available in South Dakota:
Temporary Orders. A temporary protection order is granted on an emergency basis. You must be able to show the judge that you face immediate injury, loss or damage unless the order is granted. A judge can grant you a temporary ex parte order even if the abuser does not know you are requesting it. An ex parte temporary protection order is effective for a period of thirty days (until the court hearing on your final protection order) unless the judge believes there is “good cause” to grant a continuance for another thirty days. Note: A continuance can be for longer than thirty days if the parties agree or if law enforcement cannot find the respondent to serve him/her with the ex parte protection order. If a continuance is granted, the court must extend the ex parte temporary protection order until the rescheduled hearing date.1
Final Protection Orders. You must attend a court hearing to be awarded a final protection order. The abuser will also be able to attend the hearing. You will both have a chance to tell the judge your side of the story. A final protection order can last for up to five years.2
1 SDCL §§ 25-10-6; 25-10-7
2 SDCL § 25-10-1
What protections can I get in a protection order?
A protection order can:
- order the abuser to avoid all personal contact with you;
- order the abuser to move out of and/or stay away from your home, business, school or other locations;
- order the abuser to stop all harassing, threatening and violent behavior;
- order temporary custody and/or visitation;
- order temporary child support;
- order the abuser to attend counseling;
- order parenting classes by the Dept. of Social Services;
- order the abuser to surrender all firearms, and bar him/her from buying or transporting firearms;
- order the abuser to do anything else you ask for and the judge agrees to.1
Whether a judge orders any or all of the above depends on the facts of your case.
1 SDCL § 25-10-5
In which county can I file for a protection order?
You can file a petition in the county where you live, or in the county where the abuser lives.1
1 SDCL § 25-10-2
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.