South Dakota Protection from Domestic Abuse Act, SDCL 25-10, gives you a way to seek protection from an individual, who has physically abused you, attempted to abuse you, or put you in fear of imminent harm as detailed below.
Individuals against whom you may seek a domestic protection order are defined as: (1) a spouse or former spouse; (2) an individual with whom you are in a significant romantic relationship or have been during the past twelve months; (3) an individual with whom you have a child or are expecting a child; (4) a parent and child, or (5) a sibling.
This law gives you the right to go to Court, WITH OR WITHOUT any attorney, to seek a court order for your protection or that of your children. You will be referred to as the Petitioner and the person who has abused you or threatened to physically abuse you will be referred to as the Respondent.
If you and the Respondent 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 you 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 or they may be obtained on line at the South Dakota Unified Judicial System website: http://ujslawhelp.sd.gov/ . 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 in the county where you reside.
It is important when completing the petition for a Protection Order that you provide as much information as possible to the Court as to how to contact the Respondent, including physical description, home / work addresses and telephone numbers where the Respondent can be found. The Sheriff’s Office will serve the Respondent with a copy of the Petition for Protection Order, Notice of Hearing and a copy of the Ex Parte Temporary Protection Order, if granted.
Once served, the Respondent has notice of the hearing date and is obligated to appear at the hearing for the permanent Protection Order if he or she wishes to contest the petition. Both you and the Respondent will present your cases at the time and date set for hearing and the Court will decide whether or not to make the Temporary Protection Order a Permanent Order
There are no filing fees or service fees associated with the obtaining of a protection order.
Ex Parte Temporary Protection Order
This is a temporary order issued by the circuit court judge giving you the protection you ask for, on a temporary basis, without giving the Respondent an opportunity to tell his or her side of the story. The judge may grant an Ex Parte Temporary Protection Order if, from the information provided in the Petition, it appears that there is an immediate and irreparable danger that the Respondent will physically abuse you or cause you harm you before the hearing can be held.
This Ex Parte Temporary Protection Order may be granted for a period of time up to THIRTY (30) DAYS. The Ex Parte Temporary Protection Order requires the Respondent to stop physically abusing you or putting you in fear of such abuse. It may also order the Respondent to move out of the house where you live and to stay away from the house.
If the judge grants an Ex Parte Temporary Protection Order, the judge will schedule a hearing within thirty (30) days so that the judge may hear both sides and decide whether or not to grant you a permanent Protection Order.
Order of Protection
Whether or not you are granted an Ex Parte Temporary Protection Order, the judge will schedule a hearing on your petition for a Protection Order Order. At this hearing, the judge will listen to both you and the Respondent. If the Court finds by a preponderance of the evidence that domestic abuse has taken place, the Court will issue a permanent Protection Order. You must attend this hearing. You should bring with you any additional evidence of the abuse, such as witnesses, photos, letters, emails, text messages, social media posts, recordings and medical records, etc.
The main difference between this order and the temporary order is that the Respondent will be allowed to be present and may give evidence. If the Protection Order is granted it may be in effect for a fixed period of time not exceeding five (5) years from the date of the order.
The Protection Order will require the Respondent to refrain from all acts of domestic abuse and prohibit any contact with you, directly or indirectly. The Order may also require the Respondent to move from the house where you live , to stay away from your house and to stay away from your workplace.
The Protection Order may also grant you temporary custody of any minor children, order the Respondent to pay child support and establish parenting time rights on a temporary basis, order the Respondent to obtain counseling, as well as any other injunctive relief the Court may deem necessary.
If an Ex Parte Temporary Protection Order is in effect and the judge signs a Protection Order, the ex parte Temporary Protection remains in effect until the Protection Order is served on the Respondent.
EVEN IF YOU ARE GRANTED A PROTECTION ORDER, 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 RESPONDENT.
A Violation of a Temporary Protection Order or a Protection Order is a crime which should be reported to law enforcement. A Protection Order granted from another state or jurisdiction, such as a Native American Indian Reservation, is enforceable as if it were granted by a Court of this state. Likewise, a Protection Order from this state is enforceable in another state.
Under South Dakota law, police are required to make an arrest if they have probable cause to believe that a violation of protection has taken place.. Upon arrest, if the Respondent contacts you, directly or indirectly, either before or after release from jail, he or she may be in violation of the Protection Order and law enforcement should be contacted immediately.
Your rights as it relates to criminal matters should be addressed with the State’s Attorney’s Office.
If the Respondent is convicted of violating the Protection Order, the Court may order jail time, a fine and counseling for family violence. In addition, the Protection Order remains in place prohibiting the defendant from making further contact with you.
A Protection Order is not a cure all. You must still be careful. It is important that you do not initiate contact with the Respondent. If it becomes necessary to modify the Protection Order, you should contact an attorney or the clerk of courts office and ask the judge to modify the protection order. The Protection Order cannot be modified by the parties without approval of the Court.
If the Respondent continues making prohibited contact with you, directly or indirectly, at your home, place of work, or in any other way, after the Protection Order has been entered, contact 911 or your emergency police number for immediate assistance.
Stalking Protection Orders
South Dakota law also allows those who do not meet the definition of individuals identified in SDCL 25-10, as provided above, to obtain a Stalking Protection Order. SDCL 22-19A-8.
The Petition must allege either, stalking behavior, physical injury as a result of an assault, or a crime of violence.
Stalking is defined as willfully, maliciously, and repeatedly following or harassing another person, making a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or willfully, maliciously, and repeatedly harassing another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.
As with a Domestic Protection Order, an Ex Parte Temporary Stalking Order may be obtained first and within thirty (30) days a hearing is held to determine if a permanent Stalking Protection Order is appropriate. If the Stalking Protection Order is granted it may be in effect for a fixed period of time not exceeding five (5) years from the date of the order.
The forms for a Stalking Protection Order are also obtained with the Clerk of Courts office or online at http://ujslawhelp.sd.gov/. There are no costs or fees associated with obtaining or serving a Stalking Protection Order.
A violation of a no contact provision within the Ex Parte Temporary Stalking Order or a Stalking Protection Order should be reported to law enforcement.
If a law enforcement officer has probable cause to believe that a violation of a Stalking Protection order exists they are required to make an arrest.
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 violence program in your area. You are encouraged to contact your local shelter or domestic violence program 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 Domestic Protection Orders and Stalking Protection Orders. Actual Protection Order practice and enforcement can vary from circuit to circuit. For specific information relating to your county of residence, please contact an attorney, shelter, domestic violence program or local law enforcement.
This information is based upon 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 maybe aware of any changes in the law.