Differences Between Orders of Protection and Restraining Orders in South Carolina

When you are facing harassment, stalking, or domestic abuse in South Carolina, obtaining legal protection is a critical first step. However, many people are confused about which type of legal order they actually need. South Carolina law makes a strict distinction between an Order of Protection and a Restraining Order based entirely on your relationship to the abuser.

Filing the wrong paperwork in the wrong court can result in delays that leave you unprotected. We highly recommend browsing our directory to find a local South Carolina family law attorney who can guide you to the correct courtroom and present your case effectively to a judge.

Defining Household Members Under SC Law

To qualify for an Order of Protection under S.C. Code Ann. § 20-4-20, the abuser must meet the legal definition of a 'household member'. This includes a spouse, a former spouse, people who have a child together, or a male and female who cohabitate or formerly cohabitated. If your relationship fits this definition, you must seek your protective order in a Family Court, such as the Richland County Family Court, Columbia or the Greenville County Family Court, Greenville.

If the person harassing you is a neighbor, a coworker, a stranger, or a same-sex partner you have never lived with, they do not currently meet the traditional statutory definition of a household member in SC (though case law is evolving). In these situations, you are protected under S.C. Code Ann. § 16-3-1750 against stalking and harassment, and you must file for a Restraining Order in a Magistrate Court, such as the Charleston County Magistrate Court, Charleston.

Family Court vs. Magistrate Court Procedures

The court procedures differ significantly depending on which order you pursue. Knowing where to go and what forms to file is essential for your safety.

Filing for an Order of Protection

In Family Court, you initiate the process by filing a Form SCCA 425, South Carolina, Family Court, Petition for Order of Protection. South Carolina does not charge a filing fee for this petition. The court can grant temporary custody of children, order financial support, and award temporary possession of a shared residence. Because child custody and property may be involved, these hearings are typically more complex.

Filing for a Restraining Order

In Magistrate Court, the focus is purely on stopping stalking and harassment. You will file a Form SCCA 749, South Carolina, Magistrate Court, Complaint and Motion for Restraining Order. A Restraining Order cannot award child custody or order the payment of child support. It simply orders the defendant to stay away from you, your home, and your workplace. A judge must hold a hearing within 15 days of filing.

Duration and Enforcement Differences

Both types of orders are entered into law enforcement databases and carry strict criminal penalties for violations, but they have different lifespans and scopes of protection.

• Order of Protection: Typically lasts for 6 months to 1 year. The Family Court judge has broad authority to extend this order if the threat of domestic violence continues.
• Restraining Order: Usually lasts for exactly 1 year. If the stalker continues to be a threat as the year ends, you must generally file for an extension or a new order before the current one expires.

How Much Does it Cost in South Carolina?

The South Carolina legislature ensures that victims of abuse do not have to pay to seek safety.

Frequently Asked Questions (FAQ)