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Table of Contents
Protection Orders
Stalking and Physical Injury Orders
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A quick overview of the
legal system
The legal system is divided into two areas: civil
law and criminal law.
Civil Law. Under civil law, one person sues
another for a private wrong. In a civil domestic
abuse action, you are asking the court to resolve
the conflict between you and your abuser. You are
not asking the court to punish your abuser for
committing a crime. The protection orders we talk
about on this page are under the civil law system.
Criminal Law. The criminal law system handles
cases that involve crimes such as harassment,
assault, murder, stalking, and theft. The police may
arrest your abuser and then the district attorney
may decide to charge your abuser with a crime. In
many cases you can choose whether or not to "press
charges," but once someone is arrested, the district
attorney is the one who decides whether to charge
that person with a crime and how to proceed with it.
Domestic violence cases may involve both civil and
criminal action.
Note:
Native American tribes living within the state of
South Dakota operate under the jurisdiction of their
own courts. These Tribal Laws, including domestic
abuse laws, vary among tribes. (Please see
Tribal
Info.)
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What is a protection order?
A protection order (sometimes called a restraining
order) is paper which is signed by a judge and tells
your abuser to stop the abuse or face serious legal
consequences. It offers civil legal protection from
domestic abuse to both women and men victims.
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What is the legal
definition of domestic abuse in SD?
Domestic violence in South Dakota is when a "family
or household member" does any of the following to
you:
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Causes physical harm or bodily injury
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Attempts to cause physical harm or bodily injury
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Inflicts fear of imminent physical harm or
bodily injury
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Stalking
As a general rule, the legal definition of domestic
abuse does not include verbal and/or emotional abuse
unless they cause fear of physical abuse. However,
threats of physical harm may be seen as domestic
abuse in SD law.
Note: Under South Dakota law, domestic abuse
does not include property damage.
To read the exact wording of the law, please see the
definitions section on the
SD Statutes page.
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What types of protection orders against domestic
abuse are available? How long do they last?
There are two types of protection orders against
domestic abuse available in South Dakota:
Temporary Orders. A temporary protection
order is granted on an emergency basis. You must be
able to show the judge that you face immediate
injury, loss or damage unless the order is granted.
A judge can grant you a temporary order even if your
abuser does not know you are requesting it. These
are sometimes called ex parte orders. A temporary
order protects you for up to 30 days, or until the
court hearing on your final protection order.
Final Protection Orders. You must attend a
court hearing to be awarded a final protection
order. The abuser will also be able to attend the
hearing. You will both have a chance to tell the
judge your side of the story. The length of time
that protection orders are enforceable in South
Dakota varies, and may not be for more than three
years.
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Am I eligible to file for a protection order
against domestic abuse?
A
protection order against domestic abuse protects you
from abuse by "family or household members", which
includes:
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your spouse or ex-spouse
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anyone related to you by blood or adoption
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anyone with whom you have had a child, (even if
you were never married)
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anyone who lives with you or has lived in your
household
If someone other than a family or household member
is hurting you, there are different laws designed to
protect you. You may be eligible for a
Protection Order against Stalking or Physical Injury.
Note: It may be possible for you may seek
protection from a same-sex partner (who has been a
household member of yours). However, judges do not
always rule consistently in these cases. Please talk
to someone at a local domestic violence organization
for help determining how a judge is likely to rule
and for in positioning your case. See
SD Links & Resources to find someone who can
help.
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How can a protection order protect me?
A
protection order can:
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order the abuser to avoid all personal contact
with you
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order the abuser to move out of and/or stay away
from your home, business, school or other
locations
-
order the abuser to stop all harassing,
threatening and violent behavior
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order temporary custody and/or visitation
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order temporary child support
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order either or both parties to attend
counseling
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order parenting classes by the Dept. of Social
Services
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order the abuser to surrender all firearms, and
bar him from buying or transporting firearms
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order the abuser to do anything else you ask for
and the judge agrees to.
Whether a judge orders any or all of the above
depends on the facts of your case.
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How much does it cost to file for a protection
order? Do I need a lawyer?
There is no fee to file a final or temporary
protection order.
You do not need a lawyer to file for an Protection
Order. However, you may wish to have a lawyer or an attorney, especially if your abuser has a lawyer or an attorney. If you can, contact a lawyer or an attorney to make sure that your legal rights are protected.
If you cannot afford a lawyer but want one to help
you with your case, you can find information on
legal assistance on the
SD Links & Resources page. Domestic violence
organizations in your area also should be able to
help you through the legal process and may have
lawyer referrals.
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What are the steps involved
in obtaining a protection order?
Step 1 - Get the necessary forms.
To start your case, you will need to fill out the
necessary forms for a Protection Order. You can find
the forms from the civil clerk at the courthouse,
but you may want to find them before you go and fill
them out at home or with an advocate from a local
domestic violence program. You will find links to
forms online on the
SD Download Court Forms page. Most shelters and
other domestic violence prevention organizations can
provide support for you while you fill out these
papers and go to court. (Go to
SD Links & Resources to find an organization in
your area.)
Step 2 - Carefully fill out the forms.
On the petition, you will be the "petitioner" and
the abuser will be the "respondent."
On the petition, in the box provided for explaining
why you want the protection order, write briefly
about the most recent incident of violence, using
specific language (slapping, hitting, grabbing,
threatening, etc.) that fits your situation. Include
details and dates, if possible. Clerks and
magistrates can show you which blanks to fill in,
but they cannot help you decide what to write.
Note:
Do not sign the forms until you are in front of a
notary or a clerk. The clerk can usually notarize
the forms for you.
Step 3- Bring identification for you and identifying
information about your abuser.
When you go to the courthouse, remember to bring
some form of identification. It is also helpful to
bring identifying information about your abuser if
you have it:
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a photo
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addresses of residence and employment
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phone numbers
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a description and plate number of your abuser's
car
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any history of drugs or gun ownership
Step 4- Go to the courthouse to file the forms.
You will need to file the forms in the county
courthouse where you live, where your abuser lives,
or where the abuse occurred. To file the forms,
during business hours, go to the Clerk of Civil
Court. Tell the clerk that you want to file for a
Protection Order against domestic violence. If you
need emergency protection, also tell the clerk you
need temporary order. To find contact information
for the courthouse in your area, click on
SD Courthouse Locations & Info.
Step 5- A judge will review your application.
After you finish filling out your application, bring
it to the court clerk. The clerk will forward it to
a judge. The judge may wish to ask you questions as
he or she reviews your petition.
If the judge believes you or your child are in
serious and immediate danger, s/he may give you an
Ex Parte (Temporary) Order which is good for 30
days, until your full court hearing.
Whether the judge grants you a Temporary Order or
not, you will be given a court date for a full court
"hearing" within 30 days. This hearing will be in
front of a judge at the time shown on the notice of
hearing. At this hearing, you and your abuser will
both have a chance to explain your sides to the
judge.
Note: If you received an Ex Parte (Temporary)
Order, keep a copy of it with you at all times.
Step 6- Service of process.
After the judge reviews your petition, take all of
the forms, to the Sheriff's or Police Department so
they can serve the defendant with Notice of the
Hearing. "Notice of the Hearing" is the document
that tells the defendant where and when to appear
for the full court hearing.
You will have to provide some contact information
for the defendant so the Sheriff can find him. The
defendant must receive notice of a hearing from the
Sheriff. If the defendant does not receive notice,
the hearing will be rescheduled.
Do not try and serve the abuser in person with the
papers yourself. Also, check with the sheriff or
police periodically to see if they have served the
abuser.
If you provide to the Sheriff or police with either
a telephone number or address, they may notify you
when the order is served.
Note: Protection orders may or may not be
enforceable prior to the abuser being served,
depending on which county you live in.
Step 7- Full court hearing. You must go to
the hearing. If you do not go to the hearing, your
Temporary Order will expire. It may be harder for
you to be granted an order in the future. If the
abuser does not show up for the hearing, the judge
may still grant you a Final Protection Order or may
reschedule the hearing.
You may wish to hire a lawyer to help with your
case, especially if your abuser has a lawyer. You
can also represent yourself. If your abuser shows up
with a lawyer, you can ask the judge for a
"continuance" (a later court date) so that you have
time to find a lawyer. (Go to
SD Links & Resources to find help in your area.)
If you cannot go to the hearing at the scheduled
time, you may call the judge's office to ask that
your case be "continued," but the judge may deny
your request.
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What will I have to prove at the hearing? As
the petitioner seeking a Protection Order, you must
prove that the abuser:
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caused you physical harm, or
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tried to cause you physical harm, or
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threatened to cause you physical harm.
You must also convince a judge that you need
protection and the specific things you asked for in
the petition.
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What should I do before the
hearing to prepare my case?
Contact witnesses who saw the abuse or your
injuries. Anyone can be a witness-- a friend,
family member, children, emergency room nurse,
doctor, stranger, law enforcement officer, etc. Some
witnesses may not come to court unless they are
given a subpoena which commands them to appear and
testify. Ask the court clerks about subpoena forms.
If the people you subpoena do not come to the
hearing, let the judge know.
Get evidence to help you prove your case.
Evidence can include:
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What you or a witness says in court about the
incident(s)
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Medical reports
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Police reports
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Pictures of your injuries - best if dated
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Household objects torn or broken by your abuser
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Pictures of your household in disarray after an
episode of domestic violence
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Weapons used
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Tapes of calls you may have made to 911
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Certified copies of the abuser’s criminal record
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Anything else to help you convince the judge you
have suffered acts of domestic violence and need
certain relief and protection
The more evidence you have, the greater your chances
of being granted a protection order. However, the
judge will listen to your story even if you have no
paper evidence or witnesses.
Practice telling your story. You may want to
make an outline or notes of the history of violence
between you and the defendant. You may take notes to
court with you to look at if you forget something,
but if you read from them, the judge may order that
the defendant be allowed to see them. Tell your
story in your own words, but leave out details that
have nothing to do with the physical violence or
threats of violence. Also, rather than saying, "He
or she hit me," tell the judge how you were hit,
where on your body you were hit, and how many times.
Be specific.
You may also want to mention:
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The most recent 2 incidents of violence,
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The worst 2 incidents of violence,
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Whether the defendant has a gun or other
weapons, and
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Whether the defendant has threatened to
physically hurt or kill you.
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What should I do on the day of the hearing?
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Dress neatly.
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Be on time.
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Be prepared to spend all day in court. (There
may be hearings before yours.)
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Have your witnesses there and ready.
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If you have subpoenaed witnesses and they are
not present you should inform the judge.
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Speak directly to the judge; he or she will
understand if you feel nervous.
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Always address the judge as “Your Honor.”
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If your abuser comes to court with a lawyer and
you are not represented, ask the judge for a
“continuance” so you can look for a lawyer
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Once your case is called, enter the courtroom
and find a seat. If the abuser sits next to
you, it is your right to take another seat and
to receive help from court staff in keeping the
abuser away from you.
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Stand when the judge enters and sit when the
judge or bailiff asks you to
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Relax and remain calm. Take deep breaths if you
feel yourself getting tense. Never lose your
temper in the courtroom.
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Always tell the truth
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If you don’t understand a question, just say so
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If you don’t know the answer to a question, just
say so. Never make up an answer.
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What is the order of events in the courtroom?
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At the hearing, everyone who will testify will
swear or affirm to tell the truth.
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Since you are the petitioner, you will tell your
side of the story first.
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The judge and the respondent (your abuser) may
ask you questions, which you must answer
truthfully. If you are scared to answer any of
them, tell the judge.
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When you are finished, your witnesses may speak.
You may ask them questions, and then the judge
and the respondent will have a turn to ask them
questions.
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The respondent will tell his or her side. It may
be very different from yours. After the
respondent tells his story, you and the judge
are allowed to ask him questions.
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The judge will make a decision after hearing
both sides and considering the evidence. If the
judge decides in your favor, the judge will sign
a Protection Order. It will have boxes checked
or things written in by the judge that the
respondent has been ordered to do. The judge can
order the Protection Order to be effective for
as long as three years. (Before three years is
over, you may apply to the court to have your
Protection Order extended. You will have to go
to a short hearing to tell a judge why you need
it extended.)
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You will be given a copy of the order. Review it
carefully before you leave the courthouse. If
you have ANY questions about it, be sure to ask
the judge or the court clerk.
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What should I do when I leave the courthouse?
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Review the order before you leave the
courthouse. If something is wrong or missing,
ask the clerk to correct the order before you
leave.
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Make several copies of the protection order as
soon as possible.
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Keep a copy of the order with you at all times.
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Leave copies of the order at your work place, at
your home, at the children’s school or daycare,
in your car, with a sympathetic neighbor, and so
on.
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Give a copy to the security guard or person at
the front desk where you live and/or work.
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Give a copy of the order to anyone who is named
in and protected by the order.
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If the court has not given you an extra copy for
your local police, take one of your extra copies
and deliver it to them.
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You may wish to consider changing your locks and
your phone number.
One week after court, call your local law
enforcement offices to make sure they have received
copies of the Protection Order from the clerk.
You may also wish to make a safety plan.
Women can do a number of things to increase their
safety during violent incidents, when preparing to
leave an abusive relationship, and when they are at
home, work, and school. Many batterers obey
protective orders, but some do not and it is
important to build on the things you have already
been doing to keep yourself safe. Click on the
following link for suggestions on
Safety Planning. (You can access the safety
planning information any time from the
WomensLaw.org Home page.)
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I
was not granted a protective order. What are my
options?
If you are not granted Protection Order, there are
still some things you can do to stay safe. It might
be a good idea to contact one of the domestic
violence resource centers in your area to get help,
support, and advice on how to stay safe. They can
help you develop a safety plan and help connect you
with the resources you need. For safety planning
help, ideas, and information, go to our
Safety
Planning page. You will find a list of SD
resources on our
SD Links and Resources page.
If you were not granted an Protection Order because
your relationship with the abuser does not qualify
as a “family or household member,” you may be able
to seek protection through a Stalking or Physical
Injury Order. You will find more information about
this process in the Stalking or
Physical Injury Order section of this page.
You may also be able to reapply for an Protection
Order if you have new evidence to show the court
that domestic abuse did occur, or if a new incident
of domestic abuse occurs after you are denied the
Order.
If you believe the judge made an error of law, you
can talk to someone at a domestic violence
organization or a lawyer about the possibility of an
appeal. Generally, appeals are complicated and you
will most likely need the help of a lawyer.
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What can I do if the abuser violates the order?
Through the Police or Sheriff (Criminal).
If your abuser violates the Protection Order, call
911 immediately. In some cases, the abuser can be
arrested right away. Tell the officers you have a
Protection Order and the abuser is violating it. If
your abuser is arrested, then the District Attorney
can prosecute him or her because it is a crime to
violate a Protection Order. If found guilty of a
violation of the order, your abuser can be put in
jail or fined.
It is a good idea to write down the name of the
responding officer(s) and their badge number in case
you want to follow up on your case.
Also make sure that the police write a report on the
incident even if the abuser is not arrested. This
will be valuable legal documentation if you need to
modify or extend the order in the future.
If the police do not arrest your abuser, you may
file a criminal complaint yourself. You can call
your local police department or district court to
obtain a complaint form.
Through the Civil Court System (Civil).
You may also file for civil contempt for a violation
of the order. The abuser is in "civil contempt" if
he or she does anything that your Protection Order
tells him or her not to do. To file for civil
contempt, go to the clerk's office and ask for the
petition.
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How do I change or extend the permanent order?
To modify or extend your order, go back to the court
where you got it and file a petition with the clerk.
If you are filing to extend your order, you must
request this renewal before your original order
expires.
You can file a Motion to Modify Protection Order and
Notice of Hearing at the court. The court will
assign you a hearing date. The abuser must be served
with this form. You will most likely have another
full court hearing.
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What happens if I move?
If you move within South Dakota, your Order will
still be valid and good. It is a good idea to call
the Clerk to change your address.
Additionally, the federal law provides what is
called "Full Faith and Credit," which means that
once you have a criminal or civil protection order,
it follows you wherever you go, including U.S.
Territories and tribal lands. Different states have
different rules for enforcing out-of-state
protection orders. You can find out about your
state’s policies by contacting a domestic violence
program, the clerk of courts, or the prosecutor in
your area. If you are moving out of state, you
should call the battered women’s program in the
state where you are going to find out how that state
treats out-of-state orders. If you are moving to a
new state, you may also call the National Center on
Full Faith and Credit (1-800-903-0111) for
information on enforcing your order there.
Note: Civil protective orders may not be
enforceable on military bases, and military
protective orders may not be enforceable off base.
Please check with your local police department,
court clerk, and/or domestic violence advocate for
more details. Please see our
Military Info page for more information.
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What is a Protection Order Against Stalking or
Physical Injury?
If your relationship does not meet the requirements
to obtain a Domestic Violence Protection Order, you
may be able to file for a Protection Order against
Stalking or Physical Injury. You may file for this
order if you can show that you have been stalked or
a victim of a "crime of violence".
This means that you can get one against anyone who
is stalking you or physically injuring you. This
includes neighbors, friends, landlords, tenants, or
other people who are not "family or household
members".
In order to qualify for a Protection Order against
Stalking or Physical Injury, you must be the victim
of stalking or a crime of violence as defined by the
law:
Stalking. The person you are
seeking the order against must have:
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followed or harassed you in a willful and
malicious manner and have done so more than
once, or
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made believable threats against you with the
intent to make you fearful of great bodily
harm. (The harassment must seriously alarm or
annoy you.)
Crime of
violence:
The person
you are seeking the order against must have
committed or tried to commit one of these crimes
against you:
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murder,
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manslaughter,
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rape,
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criminal pedophilia (sexual
penetration accomplished with a victim less than
thirteen years of age by any person twenty-six
years of age or older),
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aggravated assault,
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riot,
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robbery,
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burglary in the first or second degree,
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arson,
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kidnapping,
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felony sexual contact, which includes:
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sexual contact by someone over the age of 16
against someone under the age of 16 or
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certain types of incest
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felony child abuse
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any other felony in the commission of which the
perpetrator used force, or was armed with a
dangerous weapon, or used any explosive or
destructive device
Note: A victim of stalking or a crime of
violence is eligible to file for a protection order
-- whether or not you have contacted the police or
criminal charges have been pressed.
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How can this type of Order protect me? A
Stalking or Physical Injury Order can last for up to
three years, and can:
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order that the abuser avoid all personal contact
with you
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order that the abuser move out of and/or stay
away from your home, business, school or other
locations
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order that the abuser stop all harassing,
threatening and violent behavior
-
forbid the abuser from owning, possessing or
buying firearms
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grant any other measures that the court sees as
reasonable and necessary to protect you
Whether a judge orders any or all of the above
depends on the facts of your case.
To file for a Stalking or Physical Injury Protection
Order, you must go to a court in your area and file
an application. The process to obtain a Stalking or
Physical Injury Protection Order is very similar to
the steps involved in obtaining a Domestic Violence
Protection Order.
See What are the steps involved with
obtaining a protection order? for more
information. Although the process will be similar,
the forms you fill out will be different. A court
clerk can help you get the paperwork you need.
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