Bill 4306

                    Current Status

Introducing Body:               House
Bill Number:                    4306
Primary Sponsor:                Cromer
Type of Legislation:            GB
Subject:                        Magistrates, temporary restraining
                                orders
Residing Body:                  House
Computer Document Number:       NO5/7672.BD
Introduced Date:                Jan 29, 1992
Last History Body:              House
Last History Date:              Jun 04, 1992
Last History Type:              Debate adjourned
Scope of Legislation:           Statewide
All Sponsors:                   Cromer
Type of Legislation:            General Bill

 Bill  Body    Date          Action Description              CMN
 ----  ------  ------------  ------------------------------  ---
 4306  House   Jun 04, 1992  Debate adjourned
 4306  House   Jun 03, 1992  Debate adjourned until
                             Thursday, June 4, 1992
 4306  House   Jun 02, 1992  Objection withdrawn by
                             Representative
 4306  House   May 26, 1992  Objection by Representative
 4306  House   May 21, 1992  Debate Adjourned until
                             Tuesday, May 26, 1992
 4306  House   May 20, 1992  Debate adjourned
 4306  House   May 20, 1992  Objection by Representative
 4306  House   May 07, 1992  Committee Report: Favorable     25
                             with amendment
 4306  House   Jan 29, 1992  Introduced, read first time,    25
                             referred to Committee

COMMITTEE REPORT

May 7, 1992

H. 4306

S. Printed 5/7/92--H.

Read the first time January 29, 1992.

To whom was referred a Bill (H. 4306), to amend the Code of Laws of South Carolina, 1976, by adding Section 22-3-15 so as to authorize magistrates to issue and enforce temporary restraining orders, etc., respectfully

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. The 1976 Code is amended by adding:

Section 22-3-1510. This article may be cited as the `Magistrate Court Restraining Order Act.'

Section 22-3-1520. As used in this article:

(1) `Abuse' means:

(a) physical harm, bodily injury, assault, or the threat of physical harm;

(b) sexual criminal offenses, as defined by statute;

(2) `Family or household member' means spouses, former spouses, parents, children, and persons related by consanguinity or affinity within the second degree.

(3) `Court' means the magistrate court.

(4) `Petitioner' means the person alleging abuse in a petition for a magistrate court restraining order.

(5) `Respondent' in a petition for a magistrate court restraining order means the person alleged to have abused another or a person alleged to have aided or abetted the abuse.

(6) `Magistrate court restraining order' means an order issued to protect the petitioner or minor family or household members from the abuse of another person, where the respondent has received notice of the proceedings and has had an opportunity to be heard.

Section 22-3-1530. (A) A magistrate may issue a magistrate court restraining order granting only the relief provided by Section 22-3-1560.

A person violating the terms and conditions of an order of protection issued under this article is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars and imprisoned not more than thirty days.

(B) Actions for a magistrate court restraining order must be filed in the county in which the:

(1) respondent resides at the time of commencement of the action; or

(2) petitioner resides if the respondent is a nonresident of this State or if he is not found after due diligence.

Section 22-3-1540. A petition for a magistrate court restraining order is created to be used in cases of abuse. A petition for relief under this section:

(1) may be made by a person in need of protection or by a family or household member on behalf of a minor family or household member;

(2) must be verified and must allege the existence of abuse stating the specific time, place, and details of the abuse and other facts and circumstances upon which relief is sought;

(3) must inform the respondent of the right to retain counsel.

Section 22-3-1550. (A) A hearing must be held within fifteen days of the filing of a petition for a magistrate court restraining order, unless an emergency hearing is held earlier as provided in subsection (B). A magistrate shall cause a copy of the petition and requests or attachments to be served upon the respondent at least five days before the hearing, except as provided in subsection (B), in the same manner required for service in the circuit courts. Where service is not accomplished five days before the hearing, the respondent, upon motion, is entitled to a continuance to provide for compliance with this section.

(B) Upon a prima facie showing of immediate and present danger of bodily injury to the petitioner or minor household or family member of the petitioner, as evidenced by affidavit attached to a written request filed with the petition, the court shall grant an emergency hearing. The court shall rule upon the request within twenty-four hours after it is filed and shall schedule an emergency hearing to be held within forty-eight hours of the filing of the request.

Section 22-3-1560. A magistrate court restraining order granted under this article must protect the petitioner or the abused person on whose behalf the petition was filed and may include provisions temporarily enjoining the respondent from:

(1) abusing, threatening to abuse, or molesting the petitioner or the person on whose behalf the petition was filed;

(2) communicating or attempting to communicate with the petitioner or the person on whose behalf the petition was filed in a way to violate this article;

(3) entering or attempting to enter the petitioner's residence or his place of employment or education or another location the court may order. The order may not prohibit a respondent from entering or attempting to enter a location that also was respondent's residence or place of employment or education when the action was commenced.

Section 22-3-1570. A magistrate court restraining order issued pursuant to this article must be for a fixed time not to exceed thirty days.

Section 22-3-1580. The magistrate shall cause to be mailed or served upon the petitioner, the respondent, and local law enforcement agencies having jurisdiction in the area where the petitioner resides a certified copy of a magistrate court restraining order.

Section 22-3-1590. The primary duty of a law enforcement officer when responding to an incident of abuse is to enforce the laws allegedly violated and to protect the abused person if facts are found which substantiate the complaint. In these incidents the officer shall:

(1) notify the abused person of the right to initiate criminal proceedings and to seek an order of protection under the Protection from Domestic Abuse Act or a magistrate court restraining order under this article;

(2) advise the parties of the importance of preserving evidence. To provide protection to the petitioner and minor children the officer may offer or arrange to provide transportation of the abused person to a hospital for treatment of injuries or to a place of shelter or safety and to accompany the abused person to his residence to allow for the removal of clothing, medication, and reasonably necessary personal property.

Section 22-3-1600. The petitioner's right to relief under this article is not affected by:

(1) leaving the residence or household to avoid further abuse;

(2) the use of physical force against the respondent reasonably believed by the petitioner to be necessary to defend the petitioner or others from imminent physical injury or abuse.

Section 22-3-1610. A proceeding under this article is in addition to other civil and criminal remedies."

SECTION 2. Section 8-21-1010 of the 1976 Code, as last amended by Act 678 of 1988, is further amended to read:

"Section 8-21-1010. Except as otherwise expressly provided, the following fees and costs must be collected by the magistrates and deposited in the general fund of the county:

(1) for taking civil recognizance, with or without sureties,: five dollars;

(2) for granting an order for civil special bail, with or without sureties,: five dollars;

(3) for receiving and filing bond in claim and delivery, attachment,: five dollars;. If justification of sureties is required, an additional five dollars must be collected;

(4) for administering and certifying oaths or documents in writing,: two dollars;

(5) for issuing any a prerogative writ,: five dollars;

(6) in all civil actions and in actions filed pursuant to the `Magistrate Court Restraining Order Act', for issuing a summons and a copy for defendant, and for giving judgment with or without a hearing,: twenty-five dollars;

(7) for issuing execution executions and renewal thereof, their renewals: ten dollars;

(8) for making up, certifying, and forwarding a transcript of record and judgment in a case for purpose of appeal,: ten dollars;

(9) for proceedings by a landlord or lessor against a tenant or lessee, including notices to quit, eviction orders, or recovery of rents,: ten dollars;

(10) for proceedings on a coroner's inquest, as prescribed by law,: ten dollars, if an inquest is demanded by a party other than the State or county or authorized officer of either;

(11) for proceeding on estrays, including judgment for possession, sale, or damages,: ten dollars;

(12) for qualifying appraisers to set off homestead or qualifying sureties on a bond posted in a case, including bail bonds,: five dollars;

(13) for each tax execution collected,: five dollars;

(14) for filing or issuing any other paper not provided for in this section,: five dollars.

No fees or costs may be assessed against a party for summoning jurors or expense of jury service in a criminal case in which a trial by jury is had."

SECTION 3. This act takes effect upon approval by the Governor./

Amend title to conform.

DAVID H. WILKINS, for Committee.

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 22-3-15 SO AS TO AUTHORIZE MAGISTRATES TO ISSUE AND ENFORCE TEMPORARY RESTRAINING ORDERS OF NOT MORE THAN SIXTY DAYS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The 1976 Code is amended by adding:

"Section 22-3-15. Magistrates may issue temporary restraining orders of not more than sixty days and enforce them in the manner in which the orders are enforced in family and circuit courts."

SECTION 2. This act takes effect upon approval by the Governor.