What Proof is Needed For A Restraining Order in SC?

Restraining orders protect people from threats of violence, stalking, or other criminal behavior. In South Carolina, a person may seek an order of protection against a family member for domestic violence or a restraining order against someone unrelated. Either way, a judge will only grant a restraining order in South Carolina if the application submits sufficient proof of threats or violence. Contact William G. Yarborough, Attorney at Law, if you have questions for a Greenville, SC, criminal defense lawyer. We have helped people obtain restraining orders and orders of protection.

What Do I Need for a Restraining Order?

You will need proof that you have suffered harm or threats of harm from the defendant. South Carolina has different types of restraining orders:

• Order of protection. You can get this order against a current or former spouse, someone you have a child with, or someone you have lived with. (South Carolina Code § 20-4-40.) This order protects against violence or threats of violence.
• Restraining order. You can get this order against anyone for harassment or stalking. (S.C. Code § 16-3-1750.) You might seek a restraining order against a coworker, neighbor, or someone else.

Consequently, if you are seeking an order of protection, you need to show you have a relationship with the defendant so that you qualify. Otherwise, you might have to request a restraining order.

Victims must fill out a petition to submit to the magistrate judge. Supporting documentation usually includes:

• Details of the basis for the order. The victim lays out in detail the violence or threats they have faced. The petition should contain the specific place, time, and details of the abuse. Avoid lying or exaggerating, since that might hurt your case later.
• Police reports. The defendant might have been arrested for domestic violence, so you could submit police reports.
• Direct messages or text messages. A person might be harassing you by constantly sending messages. You can share them with the judge to back up your allegation that you are being harassed.
• Medical records or photographs. This evidence helps back up the claim that you suffered bodily injuries in an attack.

You can work with an attorney to seek a restraining order or order of protection. We can go through and make sure you fill out the complaint properly and submit it to the magistrate’s court.

When Can a Magistrate Issue an Emergency Order?

Judges in South Carolina can issue an emergency order. This is only a temporary order, and the court must hold a full hearing quickly, usually within 15 days. However, by law, a judge can issue an emergency order if the court finds you face immediate harm.

Hearings for a Permanent Restraining Order

A judge will not enter a permanent order until there is a hearing. The defendant has a chance to present their version of what happened. This is a much more formal hearing than when seeking an emergency order.

Each side may present evidence in support of the restraining order or in opposition:

• Witnesses to back up their version of events. We can ask friends or family to testify, especially if they observed the defendant threaten or attack you.
• Police reports and other public records. The police might have swung by your home and filed a police report. We can even ask an officer to testify on your behalf.
• Medical records. You can prove the severity of injuries when attacked by the defendant. This evidence helps convince a judge that a permanent order is necessary.
• Your own testimony. It is common for both the victim and the defendant to testify at a hearing. We can go over what to expect so you are comfortable testifying in open court. The defendant’s lawyer will have a chance to cross-examine you.

What is the Standard of Proof?

Because restraining orders are civil, the judge uses a “preponderance of the evidence” standard. This means that the judge will grant the order if it is more likely than not that you suffered the abuse or threats and need an order.

A preponderance standard is lower than the criminal law standard of guilt beyond a reasonable doubt. That is helpful for the victim seeking the order.

At a hearing, the defendant could argue that they were the victim, so your attorney needs to be prepared for that. A judge does not have to accept your version of events. The more evidence you have in support, the better.

“He Said/She Said” Situations & Restraining Orders

Many domestic violence cases involve two competing stories. There might not be any witnesses to the violence. These are especially challenging cases. Still, you might convince a judge to issue a restraining order/protective order.

Here are the keys:

1. Tell a consistent story. If your story changes, then you appear less credible. The magistrate might believe the defendant if you change critical details about the threats or violence you faced. This is one reason to work with a lawyer even when requesting an emergency order.
2. Do not exaggerate. Even if technically “true,” exaggerations undermine your credibility.
3. Do not ask friends or family to lie for you. If they didn’t see an incident, they shouldn’t pretend they did to help you out.
4. Avoid committing any crimes. Any criminal history makes you appear less credible. A fresh DUI would hurt your chances of obtaining a restraining order for the simple reason that a judge might question your integrity.

If the defendant violates an emergency order, we can use that evidence to help when seeking a permanent order.

Reach Out to Our Office Today

Attorney Yarborough has decades of experience in South Carolina courtrooms. He understands how judges analyze requests for restraining orders and protective orders. He can use this experience to help someone facing threats to get the protection they need. He has also defended men and women accused of domestic violence, so he has seen these cases from both sides. If you need a restraining order in the 29609 zip code or surrounding areas, contact our office.