The Nuts & Bolts of Orders of Protection and other relief for Victims of Domestic Violence

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1 The Nuts & Bolts of Orders of Protection and other relief for Victims of Domestic Violence Training for Victim Advocates Sponsored by South Carolina Legal Services

2 Orders of Protection: The Basics What? Who? Where? When?

3 What is an Order of Protection? A court order which can be issued by a family court judge or magistrate judge if the judge finds there has been abuse. Abuser must receive notice of the hearing and have an opportunity to be heard Can restrict the abuser from harming, threatening or communicating with the victim Can provide other relief at the judge s discretion: Custody of children Child support Alimony (if married) Possession of the home or allowing person to get their things out of the home Restrain one or both people from destroying or transferring property Other relief: possession of car, pet, supervised visitation, etc.

4 What is abuse for an Order of Protection? Defined under S.C. Code as one of the following actions committed by a household member : Physical harm Bodily injury Assault Threat of physical harm Sexual criminal offense defined under S.C. Code spousal sexual battery criminal sexual conduct: definitions criminal sexual conduct, 1 st degree criminal sexual conduct, 2 nd degree criminal sexual conduct, 3 rd degree criminal sexual conduct where victim is spouse

5 Who can file for an Order of Protection? The abuser has to be related to the victim in one of these ways: Spouse or former spouse (can be common law, but this may be difficult to prove) Have a child in common A person of the opposite sex that lives with the victim or used to live with the victim If the victim and abuser are not related in any of these ways, then the person will have to file for a restraining order in Magistrate s Court

6 RIGHT AWAY! When to file? The victim does not have to wait until the police are called can file for an Order of Protection even if no police involvement The longer you wait to file, the higher the likelihood of being denied the Order of Protection It is important to leave the home and file right away. Many judges are of the opinion that if you wait to file for an Order of Protection, that the victim is not in fear of the abuser or does not need the protection. Eg.: Client left the home 2 days after threat of abuse (took her this time to find info for the shelter) judge denied her Order of Protection

7 What to file? Petition for Order of Protection Summons Motion and Affidavit for Emergency Relief (possibly) Financial Declaration (if requesting child support or alimony) Information Sheet (specific to each county)

8 Where to file? The paperwork needs to be filed with the Family Court Clerk in the county where either: The abuse happened Where the abuser lives (unless the person is out of state) Where the victim last lived with the abuser You can also file where the victim lives or is sheltered, but if the abuser lives in another county or if the victim doesn t fit in one of those listed above, the clerk would have to transfer the case to the appropriate county (listed above).

9 When victim cannot file in Family Court If incident doesn t meet definition of abuse or if victim and abuser don t have the required relationship to file in family court, must go to Magistrate s Court File Complaint and Motion for Restraining Order where either the abuser lives or where the incident occurred Required to show either harassment or stalking (defined in S.C. Code ) Must file police incident reports with paperwork

10 Harassment 1st degree: pattern of intentional, substantial and unreasonable intrusion into the private life of person that serves no legitimate purpose and cause person to suffer mental or emotional distress (following person, repeated contact after person notified to stop, surveillance of person, vandalism) 2nd degree: same as above, but may include verbal, written or electronic contact that is initiated, maintained or repeated

11 Stalking Pattern of words (written, verbal, electronic) or conduct that serves no legitimate purpose and is intended to cause and causes the victim to fear either: Death of the victim or member of family Assault of victim or family Bodily injury of victim or family Criminal sexual contact on victim or family Damage to property of victim or family

12 If victim already has pending family court action Required to file a Motion for Further Relief within the already pending action Victim should consult with their attorney If no attorney, can file on their own Can grant same relief as in an Order of Protection If not filed within pending action, Petition for Order of Protection will be dismissed

13 Where to find forms Types of forms needed: Petition Financial Declaration Summons Order of Protection Subpoena Notice of Motion and Motion to Extend Order of Protection Petition for Citation for Contempt Rule to Show Cause Motion for Further Relief Online Resources Go to Forms Family Court or Magistrate s Court Look for form title/ name Go to departments/familycourt.htm Forms Look for form title/ name

14 How to complete the Summons The Summons notifies the other party that the victim is seeking an Order of Protection through the court Must complete the heading ONLY The VICTIM is the PETITIONER / PLAINTIFF The ABUSER is the RESPONDENT / DEFENDANT That is ALL that needs to be done on this form!

15 How to complete the Motion and Affidavit for Emergency Hearing This document is a request that the court grant the victim an emergency hearing Must complete the heading The VICTIM is the PETITIONER / PLAINTIFF The ABUSER is the RESPONDENT / DEFENDANT Use the spaces to explain why the victim needs a hearing immediately Should be a detailed account of the DV incident or threats of violence and any recent prior incidents Victim must sign this document in front of notary because it is a sworn statement to the court

16 How to complete the Petition for Order of Protection Must complete the heading The VICTIM is the PETITIONER / PLAINTIFF The ABUSER is the RESPONDENT / DEFENDANT Make sure victim answers all questions (1-7) Victim must sign this document in front of notary because it is a sworn statement to the court

17 How to complete the Petition for Order of Protection Answering the questions Establishes that the court has authority to hear this case 2 Identifies current location of abuser (this MUST be included) 3 Identifies the victim 4 Establishes relationship is within OoP rules 5 Establishes where abuse occurred and details the abuse (must include DETAILED account of abuse) 6 Documents ANY prior convictions for abuse or OoPs 7 Identifies the type of relief sought from court Identify children of the parties Any other relief sought Must complete Financial Declaration if ANY type of money requested

18 How to complete the Supplement to the Petition for OoP Must complete the heading The VICTIM is the PETITIONER / PLAINTIFF The ABUSER is the RESPONDENT / DEFENDANT ONLY used in 3 situations 1 the abuse occurred outside Sumter County 2 the abuser lives outside Sumter County 3 victim and abuser last lived together in a county other than Sumter County Court will use this form to transfer the case to the appropriate county Will only use this form if someone in the shelter is fleeing from another county

19 How to complete the Financial Declaration Must complete the heading The VICTIM is the PETITIONER / PLAINTIFF The ABUSER is the RESPONDENT / DEFENDANT This document MUST be completed if victim wants financial assistance from abuser (includes child support) Complete the form as thoroughly and completely as possible, documenting ONLY the income/expenses of the victim For example, if the victim has fled the marital home, but wishes to return and have the abuser leave, the victim should include the rent as an expense Judge will rely on this form to make ALL financial determinations Victim must sign this document in front of notary because it is a sworn statement to the court

20 How to complete the Fact Sheet Detailed information about both parties Include all known information DO NOT hold petition in an attempt to gather information

21 What happens if victim already has Order of Protection? If abuser continues to harass, threaten or abuse victim, then appropriate action is to file Rule to Show Cause with Family Court Packet available at Family Court Includes Rule to Show Cause Petition for Citation of Contempt Verification Fact Sheet

22 How to Complete the Rule to Show Cause Rule to Show Cause notifies the other party that the victim is seeking to hold abuser in contempt of court for violating the Order of Protection Must complete the heading ONLY The VICTIM is the PETITIONER / PLAINTIFF The ABUSER is the RESPONDENT / DEFENDANT That is ALL that needs to be done on this form!

23 How to complete the Petition for Must complete the heading Citation of Contempt The VICTIM is the PETITIONER / PLAINTIFF The ABUSER is the RESPONDENT / DEFENDANT Make sure victim answers all questions (1-5) 1 Victim s address 2 Abuser s address 3 This is a statement of law (Nothing is needed here!) 4 Details the continued abuse (must include DETAILED account of what has happened since OoP was granted) 5 Victim s signature Does not have to be notarized

24 How to complete the verification This document verifies that all of the information provided in the Petition for Contempt are true and accurate statements. Victim must sign this document in front of notary because it is a sworn statement to the court

25 How to complete the Fact Sheet Detailed information about both parties Include all known information DO NOT hold petition in an attempt to gather information