Order of Protection: Domestic Violence and Family Court in South Carolina
Clients typically call me about Orders of Protection in two scenarios. The first scenario is a when a victim of domestic abuse has already obtained an Order of Protection and is now seeking to hire a family court and divorce lawyer to begin the divorce process. The second, and more common scenario, is when a person who has been accused of domestic violence is served with the Petition seeking an Order of Protection and notice of the Order of Protection hearing and is seeking the help of a criminal lawyer to represent him or her at the hearing. This accused person may also be seeking a criminal law attorney to handle an accompanying criminal charge for domestic violence, and may be seeking an attorney that can handle the Order of Protection hearing, the domestic violence criminal case, and the divorce case.
What is an Order of Protection?
SC Code § 24-4-20 defines an Order of Protection as “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.”
In other words, an Order of Protection is an order signed by a Family Court Judge (occasionally a Magistrate or Summary Court Judge) that prohibits a person from having any contact with the person seeking the Order of Protection. So, for example, a wife may request one against her husband after being hit or abused, or may request one for their child, as the “protected person(s)” can include minor children.
The Order of Protection is enforceable in two ways. First, in South Carolina, it is a criminal offense to violate an Order of Protection. If an Order of Protection has been issued against you, and you have contact, however slight it may be, with the protected person, law enforcement will charge you with the criminal offense of Violating an Order of Protection.
The second way the Order of Protection is enforceable is through the contempt power of the Family Court. If you violate an Order of Protection, the protected person can file paperwork with the Family Court asking that you be found in contempt of court for violating the order. The Family Court has the power to sentence you to jail, levy a fine against you, or sentence you to community service.
An Order of Protection lasts from 6 months to 1 year, and can be renewed.
How will an Order of Protection affect me?
In addition to the “no contact” provisions of an Order of Protection, there are several other ways that the order may affect you.
- Background check. If an Order of Protection is issued against you, it will be listed on your federal and state criminal history. Any employer, or potential employer, who conducts a background check on you will know that an Order of Protection has been issued against you.
- Firearms ban. An Order of Protection triggers a federal firearms prohibition. If an Order of Protection has been issued against you, you are prohibited from possessing firearms.
- Child custody and visitation. A Family Court Judge can also order other relief in an Order of Protection. The Judge may address issues of child custody, visitation, and temporary child support.
- Alimony and marital property. The Judge may also address issues concerning temporary alimony, temporary possession of marital property, and issue restraining orders prohibiting the sale of marital property.
In my practice, I have seen a split among judges when it comes to dealing with issues that are traditionally dealt with in a divorce case; some judges will only issue the “no contact” provision of an Order of Protection and take the position that a party needs to start a divorce proceeding if he or she wants to deal with issues that are normally dealt with in a divorce or custody case. On the other hand, I have appeared before judges that have no problem addressing child support, visitation, custody, and temporary alimony in an Order of Protection.
What happens at an Order of Protection Hearing?
An Order of Protection hearing is a short trial presided over by a Family Court Judge. The person seeking the Order of Protection will testify about why he believes he is entitled to the Order of Protection; he will then be subject to cross examination by the respondent’s attorney. The respondent then has the opportunity to testify or offer evidence on her behalf; she will be subject to cross examination by the petitioner’s attorney. The burden of proof is “preponderance of the evidence,” not the stricter burden of “proof of beyond a reasonable doubt” that is used in criminal cases. The Family Court Judge may ask questions as well.
How do I file for an Order of Protection?
You can retain a family law attorney to file for an Order of Protection on your behalf and represent you at the Order of Protection hearing, but this is not common. I have only seen this once in my practice. If law enforcement was involved in your case, they will generally provide you with information on how to apply for an Order of Protection. In Greenville County, Compass of Carolina assists individuals in the Order of Protection process and has contract lawyers that assist the individual in the Order of Protection hearing. The Clerk of Court’s office in Family Court will provide you with the information on what organization in your county will help you with the Order of Protection process.
What should I do if I have been served with a Petition seeking an Order of Protection?
If you have been served with a Petition seeking an Order of Protection against you, you need to call an attorney. The timeframe between when you are served and when the hearing is scheduled is short; in some instances, it is as short as 48 hours. It is especially important to contact an attorney if you also have been charged with domestic violence, because anything you say in the Order of Protection hearing can be used against you in your criminal case.
If you’ve been accused of domestic violence in South Carolina, have received or filed for an Order of Protection, or need an attorney for domestic violence charges or related Family Court issues, contact John today. John Newkirk is an experienced Family Court lawyer in South Carolina who represents individuals in divorce, abuse, and criminal law cases.
Posted in Criminal Law | Divorce and Family Law
