Protection Orders
►
previous
page
general information
South Dakota's Protection from Domestic Abuse Act, SDCL 25-10, gives
you a way to seek TEMPORARY protection from another family or household
member who has physically abused you or has threatened to physically
abuse you.
Family or household members are defined as: spouses, former spouses,
related persons, or people presently, or in the recent past, living in
the same household, or persons who have had a child together.
This law gives you the right to go to court, WITH or WITHOUT an
attorney, to seek a court order for your protection or that of your
children.
You will be referred to as either Plaintiff or Petitioner and the
person who has abused you or threatened to physically abuse you will be
referred to as the Defendant or Respondent.
The Defendant may be your spouse, former spouse, boyfriend or
girlfriend, your parents, your children or other relatives, etc. If you
and the Defendant are presently married, you do NOT have to file for
divorce before you can receive protection under this law.
Your right to relief under this law is not affected by your leaving the
residence or household to avoid abuse.
You may obtain forms to apply for a Protection Order from the clerk of
courts in the county where you live. The forms include instruction on
how to complete the forms and each step necessary to obtain the
protection order. Once the forms have been completed you will need to
file them with the clerk of courts.
The filing fee costs are $35.00; the sheriffs fee will depend on the
mileage incurred to serve the Defendant, but generally averages $20 to
$30. If you cannot afford these fees, you may complete an Affidavit
which is a sworn statement indicating your inability to pay filing fees
and service costs. The income of the Defendant does not need to be
considered in determining your ability to pay. If you are found
indigent, which means without the ability to pay these fees, the judge
may waive the costs, which means you do not pay the court costs.
ex parte temporary order of protection
This is an order issued by the circuit court judge giving you the
protection you ask for without giving the Defendant an opportunity to
tell his side of the story. The judge may grant an Ex Parte Temporary
Order of Protection if, from the information provided in the Petition,
it appears that there is a real danger that the Defendant will
physically abuse you or threaten to physically abuse you before a
hearing can be held. This Ex Parte Temporary Order of Protection may be
granted for a period of time up to THIRTY (30) DAYS.
The Ex Parte Temporary Order of Protection requires that the Defendant
stop physically abusing you or threatening such abuse. It may also
order the Defendant to move out of the house, restrain the Defendant
from transferring, concealing, encumbering, or otherwise disposing of
your property or jointly owned property.
If the judge grants an Ex Parte Temporary Order of Protection, the
judge will schedule a hearing within the thirty (30) days so that the
judge may hear both sides and decide whether or not to grant you an
Order of Protection.
order of protection
Whether or not you are granted an Ex Parte Temporary Order of
Protection, the judge will schedule a hearing on your petition for an
Order of Protection. At this hearing, the judge will listen to both you
and the Defendant and if the Court finds by a preponderance of the
evidence that domestic abuse has taken place, the Court will issue an
Order of Protection. You must attend this hearing. You should bring
with you any additional evidence of abuse you may have, such as
witnesses to the abuse, photos, medical records, etc.
The major difference between this order and the temporary order is that
the Defendant will be allowed to be present and give evidence. If the
Order of Protection i s granted, it may be in effect for a fixed period
of time not exceeding three (3) years from the date of the order.
The Protection Order will order the Defendant to refrain from all acts
of domestic abuse and may order the Defendant to move from the marital
residence and to stay away from your residence.
The Protection Order may also grant you custody of any minor children,
order the Defendant to pay child support, and establish visitation
rights, order that either or both parties obtain counseling, as well as
any other injunctive relief the court may deem necessary.
EVEN IF YOU ARE GRANTED AN ORDER OF PROTECTION, YOU MAY ALSO SEEK
CRIMINAL CHARGES AND/OR ANY OTHER CIVIL RELIEF AVAILABLE UNDER SOUTH
DAKOTA'S LAW.
A PROTECTION ORDER BECOMES ENFORCEABLE BY CRIMINAL PROSECUTION AS SOON
AS IT IS SERVED ON THE DEFENDANT.
additional information
The Protection Order orders the person abusing you or putting you in
fear of abuse to STOP! The Protection Order may also order the abuser
to stay away from your home and your workplace. Violation of a
Protection Order is a crime and can result in a fine or incarceration
up to two years for the most serious violations.
If the abuser assaults you or is found at your home or place of
employment in violation of the order, he/she will be arrested. Under
South Dakota law, police are required to make an arrest if they believe
a Protection Order has been violated. After the violator has been
arrested, he/she will be jailed and the magistrate contacted to set
bail and conditions for release which should include no contact with
the victim. If the Defendant contacts you after release from jail,
he/she may be in violation of one of his/her bond conditions.
Authorities should be contacted immediately.
When the abuser is released from jail, a court date will be set. At the
initial appearance, the abuser enters a plea of either guilty or not
guilty. If the abuser pleads not guilty, a preliminary hearing will be
set. In all likelihood, it will be necessary for you to testify at the
preliminary hearing.
If the abuser either pleads guilty or is found guilty after a trial,
the Court may order a fine, jail time, and/or counseling for anger
control. If the Defendant is placed on probation, the Court must order
family violence counseling. In addition, the Protection Order remains
in place prohibiting the abuser from further contact with you.
Remember that the abuser is not to come to your home or your workplace
after the Protection Order is in place. If it is necessary to have
contact, the safest contact is by phone. If it is necessary for you to
talk with this individual in person, you should make arrangements to
meet the person at a neutral location, preferably somewhere where there
are other people around where you will be safe, such as a coffee shop.
A Protection Order is not a cure-all. You still must be careful. If you
expect the abuser to abide by and follow the Protection Order, you must
adhere to the conditions of the order as well. If it is necessary to
amend the order to allow the abuser to come to your home or your
workplace, you should contact an attorney or the judge who signed the
Protection Order and ask for the appropriate modification.
If the abuser continues making prohibited contact with you, directly or
indirectly, at your home, place of work, or any other place, after the
Protection Order has been entered, contact 911 or your emergency police
number for immediate assistance.
If you want the assistance of an attorney and cannot afford one, you
should contact a legal service office in your area.
Your local Clerk of Courts, Police Department, Sheriff or attorney can
give you the name and phone number for the shelter or domestic abuse
support group in your area. You are encouraged to contact your local
shelter or domestic violence support group to learn about the programs
and services available to you.
The information in this brochure is designed to provide a basic
overview of the law relating to Protection Orders. Actual protection
order practice and enforcement may vary from circuit to circuit. For
specific information relating to your county of residence, please
contact an attorney, shelter, domestic violence support group or local
law enforcement.
This brochure is based on South Dakota law and is designed to inform,
not to advise. No person should ever interpret any law without the aid
of an attorney who knows the facts and may be aware of any changes in
the law.
The State Bar of South Dakota
222 East Capitol
Pierre, SD 57501
(Revised 12/95)
|
