This statutory database is current through the 2004 Regular Session of the South Carolina General Assembly. Changes to the statutes enacted by the 2005 General Assembly, which will convene in January 2005, will be incorporated as soon as possible. Some changes enacted by the 2005 General Assembly may take immediate effect. The State of South Carolina and the South Carolina Legislative Council make no warranty as to the accuracy of the data, and users rely on the data entirely at their own risk.
Title 20 - Domestic Relations
PROTECTION FROM DOMESTIC ABUSE
This chapter may be cited as the "Protection from Domestic Abuse Act".
As used in this chapter:
(a) "Abuse" means:
(1) Physical harm, bodily injury, assault, or the threat of physical harm;
(2) Sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member;
(b) "Household member" means spouses, former spouses, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited.
(c) "Court" means the Family Court.
(d) "Petitioner" means the person alleging abuse in a petition for an order of protection.
(e) "Respondent" in a petition for an order of protection means the person alleged to have abused another or a person alleged to have aided and abetted such abuse.
(f) "Order of protection" means an order of protection issued to protect the petitioner or minor household members from the abuse of another household member where the respondent has received notice of the proceedings and has had an opportunity to be heard.
(A) The family court has jurisdiction over all proceedings under this chapter except that, during nonbusiness hours or at other times when the court is not in session, the petition may be filed with a magistrate. The magistrate may issue an order of protection granting only the relief provided by Section 20-4-60(a)(1).
(B) Except as provided in subsection (C), actions for an order of protection must be filed in the county in which:
(1) the alleged act of abuse occurred;
(2) the petitioner resides or is sheltered, unless the petitioner is a nonresident of the State;
(3) the respondent resides, unless the respondent is a nonresident of the State; or
(4) the parties last resided together.
(C)(1) If the action is filed in the county in which the petitioner resides or is sheltered and the respondent is a nonresident of that county, the petitioner must request that the action be immediately transferred to another county in which venue is proper and must include a supplemental petition that designates the transfer county and that changes all specific references to the county of filing to the transfer county. The clerk of court must transfer and forward the supplemental petition to the transfer county.
(2) If the petitioner is a nonresident of the State, the action must be filed in the county specified in item (1), (3), or (4) of subsection (B).
(3) If the respondent is a nonresident of the State, the petitioner may request that the action be immediately transferred to another county in which venue is proper and must include a supplemental petition that designates the transfer county and that changes all specific references to the county of filing to the transfer county. The clerk of court must transfer and forward the supplemental petition to the transfer county.
(D) Hearings on the petition may be held in any county in the same judicial circuit as the county in which the action is filed or to which the action is transferred.
Petition for order of protection.
There is created an action known as a "Petition for an Order of Protection" in cases of abuse to a household member.
(a) A petition for relief under this section may be made by any household members in need of protection or by any household members on behalf of minor household members.
(b) A petition for relief must allege the existence of abuse to a household member. It must state the specific time, place, details of the abuse, and other facts and circumstances upon which relief is sought and must be verified.
(c) The petition must inform the respondent of the right to retain counsel.
(d) In a pending action for divorce or separate support and maintenance, the petition for relief shall be brought in the form of a motion for further relief and shall be served on counsel of record, if any. Where no action is pending, the petition shall be filed and served as an independent action.
(e) The clerk of court must provide simplified forms which will facilitate the preparation and filing of a petition under this section by any person not represented by counsel, including motions and affidavits to proceed in forma pauperis.
(f) The clerk of court may not charge a fee for filing a petition for an order for protection from domestic abuse.
Hearing on petition.
(a) Within twenty-four hours after service of a petition under this chapter upon the respondent, the court may, for good cause shown, hold an emergency hearing and issue an order of protection if the petitioner proves the allegation of abuse by a preponderance of the evidence. A prima facie showing of immediate and present danger of bodily injury, which may be verified by supporting affidavits, constitutes good cause for purposes of this section.
(b) If the court denies the motion for a twenty-four-hour hearing or such a hearing is not requested, the petitioner may request and the court must grant a hearing within fifteen days of the filing of a petition. The court must cause a copy of the petition to be served upon the respondent at least five days prior to the hearing, except as provided in subsection (a), in the same manner required for service in the circuit courts. Where service is not accomplished five days prior to the hearing, the respondent, upon his motion, is entitled to a continuance until such time is necessary to provide for compliance with this section.
Order of protection; contents.
(a) Any order of protection granted under this chapter shall be to protect the petitioner or the abused person or persons on whose behalf the petition was filed and may include:
(1) Temporarily enjoining the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed.
(2) Temporarily enjoining the respondent from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of this chapter and temporarily enjoining the respondent from entering or attempting to enter the petitioner's place of residence, employment, education, or other location as the court may order.
(b) Every order of protection issued pursuant to this chapter shall conspicuously bear the following language: "Violation of this order is a criminal offense punishable by thirty days in jail or a fine of two hundred dollars or may constitute contempt of court punishable by up to one year in jail and/or a fine not to exceed fifteen hundred dollars".
(c) When the court has, after a hearing for any order of protection, issued an order of protection, it may, in addition:
(1) Award temporary custody and temporary visitation rights with regard to minor children living in the home over whom the parties have custody.
(2) Direct the respondent to pay temporary financial support for the petitioner and minor child unless the respondent has no duty to support the petitioner or minor child.
(3) When the respondent has a legal duty to support the petitioner or minor children living in the household and the household's residence is jointly leased or owned by the parties or the respondent is the sole owner or lessee, grant temporary possession to the petitioner of the residence to the exclusion of the respondent.
(4) Prohibit the transferring, destruction, encumbering, or otherwise disposing of real or personal property mutually owned or leased by the parties or in which one party claims an equitable interest, except when in the ordinary course of business.
(5) Provide for temporary possession of the personal property of the parties and order assistance from law enforcement officers in removing personal property of the petitioner if the respondent's eviction has not been ordered.
(6) Award costs and attorneys' fees to either party.
(7) Award any other relief authorized by Section 20-7-420; provided, however, the court must have due regard for any prior Family Court orders issued in an action between the parties.
(d) No protective order issued pursuant to this chapter may, in any manner, affect the title to real property.
(e) No mutual order of protection may be granted unless the court sets forth findings of fact necessitating the mutual order or unless both parties consent to a mutual order.
Duration of order of protection; modification of terms.
(A) An order of protection issued under Section 20-4-60 must be for a fixed time not less than six months nor more than one year unless the parties have reconciled as evidenced by an order of dismissal and may be extended or terminated by order of the court upon motion by either party showing good cause with notice to the other party. A respondent has the right to a hearing on the extension of an order issued pursuant to this section within thirty days of the date upon which the order will expire. If the parties reconcile, the issuing court may grant an order of dismissal without a hearing if the petitioner receiving the order of protection to be dismissed appears personally at the offices of the issuing court, shows proper identification, and signs a written request to dismiss based on the reconciliation.
(B) Provisions included in an order of protection granting relief pursuant to Section 20-4-60(c) must be enforced until further order of the court following the issuance of the order unless before the expiration of the period the court has scheduled a hearing pursuant to the filing of an action for divorce or separate support and maintenance to determine the temporary rights and obligations of the parties with respect to support of a spouse or children, custody and visitation, or the distribution of personal property. If the hearing has been scheduled, relief granted under Section 20-4-60(c) remains in effect until an order pursuant to the hearing is issued by the court.
(C) The family court may modify the terms of any order issued under this section.
(D) An order of protection issued by a magistrate expires as provided under the terms of the order or upon the issuance of a subsequent order by the family court, whichever occurs first.
Mailing or service of order.
A certified copy of any order must be mailed to or served upon the petitioner, the respondent, and local law enforcement agencies having jurisdiction in the area where the petitioner resides. No charge may be made to the petitioner for such action.
Sheriff's department to assist in execution of order.
When any order is issued pursuant to this chapter, upon request of the petitioner, the court may, as part of the order, require the sheriff's department or the police department pursuant to duties described under Section 20-4-100 to accompany the petitioner and assist in placing the petitioner in the possession of the dwelling or residence or otherwise assist in execution of service of the order.
Responsibilities of law enforcement officer.
The primary duty of a law enforcement officer when responding to a domestic abuse incident is to enforce the laws allegedly violated and to protect the abused person if facts are found which substantiate the complaint. In such incidents, the law enforcement officer must take the following protective measures:
(a) Notify the abused person of the right to initiate criminal proceedings and to seek an order of protection under this chapter.
(b) Advise the parties of the importance of preserving evidence. To provide protection to the petitioner and any minor children, the officer may offer or arrange to provide transportation of the abused person to a hospital for treatment of injuries or to a place of shelter or safety and to accompany the abused person to his or her residence to allow for the removal of clothing, medication, and such personal property as is reasonably necessary.
Immunity from civil or criminal liability.
Any person who makes a report pursuant to this chapter or who participates in judicial proceedings resulting therefrom, acting in good faith, is immune from civil and criminal liability which might otherwise result by reason of such actions. In all such civil or criminal proceedings good faith is rebuttably presumed.
Actions not affecting right to relief.
The petitioner's right to relief under this chapter is not affected by leaving the residence or household to avoid further abuse.
The petitioner's right to relief under this chapter is not affected by the use of such physical force against the respondent as is reasonably believed by the petitioner to be necessary to defend the petitioner or others from imminent physical injury or abuse.
Applicability of other remedies.
Any proceeding under this chapter is in addition to other civil and criminal remedies.
Protection orders issued by foreign jurisdictions; validity in this state; enforcement of order; defendant's right to notice and opportunity to be heard.
(A) A valid protection order related to domestic or family violence, issued by a court of another state, tribe, or territory must be accorded full faith and credit by the courts of this State and enforced as if it were issued in this State even if the relief granted to the petitioner in the foreign order would not be available under the laws of this State. A valid protection order related to domestic or family violence issued by a county in this State must be accorded full faith and credit by all courts of this State but must be limited to relief available under South Carolina law. The court shall provide two certified copies of the order, free of charge, to a party receiving a protection order related to domestic or family violence in South Carolina. One of these copies must be for the party's records. The party must be directed by the court to present the other copy to law enforcement in the county in which the order was issued for entry into the National Crime Information Center and for enforcement if necessary.
(B) A protection order related to domestic or family violence, issued by a state, tribe, or territory, is valid if the issuing court had jurisdiction over the parties and subject matter under the laws of the state, tribe, or territory. There is a presumption in favor of validity where an order appears authentic on its face. A defendant must have been given reasonable notice and the opportunity to be heard before the foreign order was issued; however, in the case of an ex parte order, notice and opportunity to be heard must have been given as soon as possible after the order was issued, consistent with due process. Failure to provide reasonable notice and opportunity to be heard is an affirmative defense to any charge or process filed seeking enforcement of a foreign protection order.
(C) A protection order entered against both the petitioner and defendant is not enforceable against the petitioner unless:
(1) the defendant filed a cross or counter petition, complaint, or other written pleading seeking a protection order; and
(2) the issuing court made specific findings of domestic or family violence against both parties and determined that each party is entitled to a protection order.
(D) A petitioner who obtains a valid order of protection in another state, tribe, or territory, may file that order without fee or cost by presenting a certified copy of the foreign order to a clerk of court in the judicial circuit where the petitioner believes enforcement may be necessary. A clerk of court shall direct the petitioner to present a copy of the filed foreign protection order to the police or sheriff's office for enforcement if necessary. The clerk also shall provide the petitioner with copy bearing proof of filing with the court for the petitioner's records. However, filing of the foreign order is not a prerequisite for enforcement of the order.
(E) A law enforcement officer may rely upon a copy of a protection order which has been provided to the officer by any source and which appears valid on its face regardless of certification and also may rely upon the statement of any person protected by a protection order that the order remains in effect. An officer shall enforce a valid order regardless of whether it has been entered into the National Crime Information Center or other registry. An officer shall also enforce a foreign order regardless of whether it has been filed in a South Carolina court. If the order was issued in South Carolina and has not previously been entered into the National Crime Information Center, the law enforcement officer must enter the order. A law enforcement officer acting in good faith is immune from civil and criminal liability in any action arising in connection with a court's finding that a protection order was not enforceable.
Domestic Violence Fund.
(A) There is established the Domestic Violence Fund, a fund separate and distinct from the general fund, in the State Treasury. The fund must be administered by the Department of Social Services and revenues of the fund must be used solely to award grants to domestic violence centers and programs in the State.
(B) In order for a domestic violence center or program to be eligible to receive funds, it must be a nonprofit corporation and must:
(1) have been in operation on the preceding July 1 and continue to be in operation; and
(2) offer the following services:
(a) a twenty-four hour hotline;
(b) transportation services;
(c) community education programs;
(d) daytime services, including counseling; and
(e) other criteria as may be established by the department.
(C) The Domestic Violence Fund must receive its revenue from that portion of marriage license fees provided for in Section 20-1-375 and donations, contributions, bequests, or other gifts made to the fund. Contributions to the fund must not be used to supplant existing funds appropriated to the department for domestic violence programs and grants. Monies in the fund may be carried forward from one fiscal year to the next, and interest earned on monies in the fund must be retained by the fund.