Although a restraining order is not a criminal offense itself, it can come to have other legal ramifications, and violating the terms can lead to a criminal charge. If you are seeking to obtain a restraining order or if you've received one, it's important to understand how the legal process works.
Understanding restraining order cases in South Carolina
In order to obtain a restraining order in a summary court, the person seeking a restraining order must file a Petition for a Restraining Order in Summary Court. The summary court will then have the other party served with the petition and notice for a court date for the restraining order hearing. The restraining order hearing is a trial in front of a summary court judge. Either party in a restraining order case may have an attorney represent them.
In order for a summary court judge to issue a restraining order, the petitioner must prove by a preponderance of evidence that the other party has stalked or harassed them.
Stalking and harassment are defined by statute, and are also crimes.
But, in a restraining order case, the petitioner only has to prove their case by a preponderance of the evidence, which is a civil burden of proof. If a person is criminally charged with the crime of harassment or stalking, the State would have to prove them guilty beyond a reasonable doubt to sustain a conviction.
If the summary court judge issues a restraining order, then the respondent is restrained from having any contact with the petitioner for a period of time, either six (6) months or one (1) year. The petitioner can also file a motion to extend a restraining order for good cause shown.
If a person violates a restraining order, that person is subject to the contempt powers of the summary court. If a summary court judge rules that a person violated the restraining order, they can hold that person in contempt of court and sentence them to a fine or jail time.
A person can also be charged with a crime for violating a restraining order. The crime of violating a restraining order is a criminal offense that can carry jail time or a fine.
A restraining order will also be listed on a person’s criminal record for the duration of the time the restraining order is in effect.
If you need to speak with a criminal defense lawyer who handles restraining order cases, please give me a call at (864) 467-3221.
