Domestic Violence & Your Rights

domestic violence, spousal abuse, lawyer, attorney, charleston, summervilleAccording to the website for South Carolina Attorney General Alan Wilson, more than 36,000 victims report a domestic violence incident to law enforcement agencies through the Palmetto State.  The number of victims of domestic violence who never report the incidents will never be known.

Domestic violence and spousal abuse are intolerable.  In South Carolina and elsewhere, as a victim of domestic violence, you have rights.

Victims of domestic violence in South Carolina may obtain Orders of Protection.  Violation of an Order of Protection is a misdemeanor; arrest for such a violation may be made with or without an arrest warrant.

A petition for an Order of Protection may be made by any member of the household in need of protection from domestic violence.  A petition may also be made by any household members on behalf of a minor child living in the house who is in need for protection and, for any number of reasons, is unable to speak up for him or herself.

In order to file a petition for an Order of Protection, the victim or household member reporting on behalf of a minor victim must allege the existence of abuse to a household member.  That means that the person seeing the petition must be able to state, with specificity, the time, place and nature of the abuse.  Once the petition has been filed, the alleged abuser is informed of his or her right to retain counsel.

An emergency hearing may be held within twenty-four hours after the petition is served upon the alleged abuser.  To obtain an emergency hearing, the party seeking to be heard must demonstrate “good cause” — in other words, the person must show that there is an immediate and present danger of bodily injury. Should the Court deny the emergency hearing for whatever reason, or if the emergency hearing is not requested by the filing party, a hearing must be granted within fifteen days.

An Order of Protection generally prevents the abuser from doing certain things:

  • The abuser must not abuse, threaten to abuse, or molest the petitioner or the person on behalf of whom the petition was filed
  • The abuser must not communicate or try to talk to the person who filed the petition, or the person on behalf of whom the petition was filed, in any way
  • The abuser must not enter or try to enter the petitioner’s–or the person on behalf of whom the petition was filed–place of residence, employment, education or other court-ordered location

In an Order of Protection, the Court is within its discretion to

  • Order temporary custody and/or temporary visiting rights for minor children living in the home, over whom the parties have custody
  • Order the person served with the Order of Protection to pay financial support to the petitioner and the minor child, unless the person served has no duty to support
  • Grant temporary exclusive possession of the residence to the person who filed the petition
  • Prohibit the transfer, destruction, encumbrance or disposal of real property (like a house) or personal property (such as a car) that is mutually owned
  • Provide for temporary possession of personal property of the parties, and order assistance from law enforcement officers–if necessary–to remove the property
  • Award attorney’s fees and costs to either party

In terms of duration, an Order of Protection lasts for a fixed amount of time–more than six months, but less than one year–unless the parties have reconciled.  If the parties have indeed reconciled, that reconciliation will be evidenced by an Order of Dismissal, which can be done either by hearing, or by written, in-person release.

After the fixed time passes, an Order of Protection can be either extended or terminated by either party, so long as the party wanting to extend or end the Order shows good cause, and notifies the other party of the extension or termination.  If an extension is asked for, the party subject to the Order of Protection has a right to a hearing within thirty (30) days of the expiration of the current Order of Protection.

Domestic violence is something that must be taken very seriously.  If you are a victim of domestic violence, please understand that you do have rights, and that your safety and security are paramount.  Call me, and we can talk.  Your call, and our meeting, will be completely confidential.

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