Protection Orders

Question

How do I file for a protection order?

Answer

The South Dakota Legal Self-Help website maintains current information on protection orders in South Dakota.

Protective orders, also called "restraining orders," require a named individual (typically, those charged with domestic violence or stalking) to stay a specified distance away from a named victim, for a certain amount of time. They are technically legal documents issued by a judge or magistrate to protect the health and safety of a person who is alleged to be a victim of any act involving violence, force or threat that results in bodily injury or places that person in fear of death, sexual assault or bodily injury.

 

Persons Entitled to Protective Orders in South Dakota

Any person who is involved in one of the following relationships with another party may be entitled to a protective order upon proof:

  • Spouse or former spouse
  • Is in a significant romantic relationship
  • Has a child or is expecting a child with the abusing party
  • Parent and child, including a relationship by adoption, guardianship, or marriage
  • Siblings, whether of the whole or half blood, including a relationship through adoption or marriage

Obtaining a Protection Order

  • Visit the Clerk of Court's office in your county to obtain the forms needed to apply for a protection order. The forms are also available here
  • Some shelters or advocacy centers have the forms available or can assist victims in obtaining them

After Completing the Paperwork

  • Return the forms to the Clerk of Courts
  • The Clerk of Courts will likely assign the protection order application to the same judge if any civil litigation is happening between the parties (ie. Divorce, child custody). Parties should make the judge aware of any other proceedings.
  • A judge will then review the petition
  • A judge will make one of the following decisions:
    1. decline the request for a protection order
    2. grant a temporary protection order, and/or
    3. grant a hearing for a permanent protection order

For the Hearing

  • After requesting a protection order and being granted a hearing, the person filing must appear and be prepared to give evidence or have witnesses to explain to the judge why the protection order is needed. A lawyer can be hired to assist with this.
  • The person who has the protection order filed against them does not have to appear. The judge will still listen to evidence and decide if the protection order should be granted.
  • If the person who has the protection order filed against them does appear, the judge may ask them what they think about the protection order. If they do not object, the judge may grant the order. If they do object, the judge may ask additional questions to determine if the protection order should be granted. The person may appear with or without a lawyer.
  • Review information on how to prepare for court

During the Hearing

  • The judge may start by explaining the rules to both parties.
  • The person requesting the protection order will go first and present their evidence and call witnesses. They will explain to the judge why they need the protection order.
  • Once the first person is done, they may be asked questions by the other party.
  • Next, the person responding to the protection order will be allowed to provide evidence or their own witnesses. They may also be asked questions by the other party once they have finished.
  • The judge may ask questions of either party or witnesses during the hearing.

After the Hearing

  • The judge will determine if the protection order will be granted and for how long. The maximum time for a protection order is 5 years.
  • The judge may also determine outcomes relating to children.
  • The judge may also make a determination regarding firearms. The judge may order no firearms in the possession of the person the order was granted against. It is a federal violation for that person to possess a firearm while subject to the permanent protection order.
  • After the order is granted and is put into place, it must be honored. After the judge signs it, it will be served on the other party. Neither party should contact the other.

Enforcement

  • All violations of the protection order in place should be immediately reported to law enforcement.
  • A copy of the protection order should always be carried with the person it was granted to.
  • South Dakota law enforcement should enforce orders from other states and Tribes

Modifications

  • Only a judge may modify the protection order.
  • At any time, either party may request to modify the order. The request should be in writing and filed with the clerk.
  • The judge will receive the request and decide whether to have a hearing regarding the request. A hearing is not always required.
  • At the hearing, whichever party is requesting the modification must present evidence to support the modification request.

Dismissals

  • Only a judge may dismiss the protection order.
  • At any time, either party may request to dismiss the order. The request should be in writing and filed with the clerk.
  • The judge will receive the request and decide whether to have a hearing regarding the request. A hearing is not always required.
  • At the hearing, whichever party is requesting the dismissal must present evidence to support the dismissal request.

 

Please contact the University Police if you need further assistance.

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