Permanent Restraining Orders/Emergency Restraining Orders
Pursuant to §16-3-1900 et seq., a victim or witness who assisted the prosecution may request a permanent restraining order in general sessions or family court, as applicable, at the time the respondent is convicted/adjudicated for the criminal offense committed against the complainant. The complainant may also seek a permanent restraining order through the filing of a summons and complaint in the court of common pleas. If the common pleas court is not in session for the complainant to obtain a permanent restraining order, §16-3-1920 vests the Magistrate Court with jurisdiction over an action seeking an emergency restraining order. Municipal courts have no jurisdiction over restraining orders.
The following people may seek an emergency restraining order: a victim of a criminal offense that occurred in this State; 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 a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.
1. Issuance of Emergency Restraining Order by Magistrate With Notice of Hearing
a. In seeking an emergency restraining order, the Complainant must file a summons and complaint (SCCA 764 and SCCA 766) in Magistrate Court in the county in which the respondent resides when the action commences; the criminal offense occurred; or the complainant resides, if the respondent is a nonresident of the State or cannot be found.
b. A complaint must state that the respondent was a person convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity; state when and where the conviction took place, and the name of the prosecuting entity and court; be verified; and inform the respondent of his right to retain counsel to represent the respondent at the hearing on the complaint.
c. 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.
d. 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.
e. The court shall hold a hearing on an emergency restraining order within 15 days of the filing of a summons and complaint, but not sooner than 5 days after service has been perfected upon the respondent. The court shall serve a copy of the summons and complaint upon the respondent at least 5 days before the hearing in the same manner required for service as provided in Rule 4 of the South Carolina Rules of Civil Procedure.
f. The hearing on an emergency restraining order 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.
g. The court may issue an emergency restraining order upon a finding 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, as applicable; or 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. The terms of an emergency restraining order must protect the victim or witness and may include enjoining the respondent from: abusing, threatening to abuse, or molesting the victim, witness, or members of the victim's or witness' family; entering or attempting to enter the victim's or witness' place of residence, employment, education, or other location; and 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.
h. The court shall serve the respondent with a certified copy of the emergency restraining order (SCCA 768) 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.
i. An emergency restraining order remains in effect until a hearing on a permanent restraining order in the Court of Common Pleas. If a complainant does not seek a permanent restraining order pursuant to §16-3-1910 in the Court of Common Pleas within 45 days of the issuance of an emergency restraining order, the emergency restraining order no longer remains in effect. Upon issuance, the magistrate should notify the complainant verbally they must seek a permanent restraining order in the Court of Common Pleas within 45 days of the issuance of the restraining, or the emergency restraining order will no longer remain in effect. The court may modify the terms of an emergency restraining order.
j. Notwithstanding another provision of law, an emergency restraining order is enforceable throughout this State. 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.
2. Issuance of Emergency Restraining Order by Magistrate Without Notice of Hearing
a. Within 24 hours after the filing of a summons and complaint seeking an emergency restraining order and a Motion and Affidavit for Emergency Hearing (SCCA 765), 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 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 the complainant certifies to the court that one of the following has occurred: efforts have been made to serve the notice or 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.
b. An emergency restraining order granted without notice (SCCA 767) must be endorsed with the date and hour of issuance and entered on the record with the magistrates court. The emergency restraining 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 in the Court of Common Pleas.