Angels In Blue: Domestic Abuse Laws~South Dakota

Domestic Abuse Laws
South Dakota
2001

CHAPTER 10
PROTECTION FROM DOMESTIC ABUSE

Sec. 25-10-1. Definitions.
Sec. 25-10-2. Application for relief -- Filing -- Venue.
Sec. 25-10-3. Petition for protection order
Sec. 25-10-4. Hearing -- Time -- Service on respondent.
Sec. 25-10-5. Relief authorized on finding abuse -- Time limitation.
Sec. 25-10-5.1. Counseling required for domestic abuse defendant placed on probation.
Sec. 25-10-5.2. Restrictions on issuance of mutual orders for protection against abuse.
Sec. 25-10-5.3. Court to require instruction in parenting as part of sentence in certain convictions -- Exception.
Sec. 25-10-6. Ex parte temporary protection order.
Sec. 25-10-7. Limited duration of temporary order -- Service on respondent.
Sec. 25-10-7.1. Temporary order effective until order under served § 25-10-5 served.
Sec. 25-10-8. Security not required of petitioner -- Exception.
Sec. 25-10-9. Departure of petitioner from household not waiving right to relief.
Sec. 25-10-10. Modification of order.
Sec. 25-10-11. Real estate titles not affected.
Sec. 25-10-12. Delivery of order to law enforcement agencies
Sec. 25-10-13. Violation of order as misdemeanor or felony.
Sec. 25-10-22. Effect of divorce or other civil proceedings prior to criminal proceedings.
Sec. 25-10-23. Conditional bond -- Violation as misdemeanor.
Sec. 25-10-24. Surrender of weapon by defendant.
Sec. 25-10-25. Convicted defendant prohibited from contacting victim.

25-10-1. Definitions. Terms used in this chapter mean:

(1) "Domestic abuse," physical harm, bodily injury, or attempts to cause physical harm or bodily injury, or the infliction of fear of imminent physical harm or bodily injury between family or household members;

(2) "Family or household members," spouses, former spouses, or persons related by consanguinity, adoption or law, persons living in the same household, persons who have lived together, or persons who have had a child together;

(3) "Protection order," an order restraining any family or household member from committing any act of domestic abuse or an order excluding any family or household member from the dwelling or residence of another family or household member, whether or not the dwelling or residence is shared. A protection order has a duration of three years or less; and

(4) "Temporary protection order," an order restraining any family or household member from committing any act of domestic abuse or an order excluding any family or household member from the dwelling or residence of another family or household member, whether or not the dwelling or residence is shared. A temporary protection order has a duration of thirty days except as provided in § 25-10-7.1.

25-10-2. Application for relief -- Filing -- Venue. An application for relief under this chapter may be filed in circuit court or in a magistrate court with a magistrate judge presiding. Venue lies where any party to the proceedings resides.

25-10-3. Petition for protection order -- Parties -- Allegations -- Affidavit -- Pending action -- Costs -- Standard petition form. There exists an action known as a petition for a protection order in cases of domestic abuse. Procedures for the action are as follows:

(1) A petition under this section may be made by any family or household member against any other family or household member.

(2) A petition shall allege the existence of domestic abuse and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the domestic abuse.

(3) A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition or other action between the parties.

(4) If a petitioner files an affidavit with his petition stating that he does not have the funds available to pay the cost of filing and service, the petition shall be filed and served without payment of costs. If a petition is filed and served without payment of costs, the court shall determine at the hearing described in § 25-10-5 if the petitioner is indigent. In determining if the petitioner is indigent, the income of the alleged perpetrator of the domestic abuse may not be considered. If the court finds that the petitioner is not indigent, the court may order the petitioner to pay the costs of filing and service.

The clerk of the circuit court shall make available standard petition forms with instructions for completion to be used by a petitioner. The department of social services shall prepare the standard petition form.

25-10-4. Hearing -- Time -- Service on respondent. Upon receipt of the petition, the court shall order a hearing which shall be held not later than thirty days from the date of the order. Personal service of the petition, affidavit and notice for hearing shall be made on the respondent not less than five days prior to the hearing.

25-10-5. Relief authorized on finding abuse -- Time limitation. Upon notice and a hearing, if the court finds by a preponderance of the evidence that domestic abuse has taken place, the court may provide relief as follows:

(1) Restrain any party from committing acts of domestic abuse;

(2) Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner;

(3) Award temporary custody or establish temporary visitation with regards to minor children of the parties;

(4) Establish temporary support for minor children of the parties or a spouse;

(5) Order that either or both of the parties obtain counseling;

(6) Order other relief as the court deems necessary for the protection of a family or household member, including orders or directives to a sheriff or constable.

Any relief granted by the order for protection shall be for a fixed period and may not exceed three years.

If any minor child resides with either party, the court shall order that the parties receive instruction on parenting approved or provided by the Department of Social Services as part of any relief granted.

25-10-5.1. Counseling required for domestic abuse defendant placed on probation. If a court places a defendant on probation upon receiving a verdict or plea of guilty for a crime involving domestic abuse, the court shall order that a condition of the defendant's probation is that he attend family violence counseling. Failure to attend family violence counseling is a violation of the defendant's probation.

25-10-5.2. Restrictions on issuance of mutual orders for protection against abuse. No court may, pursuant to the provisions of § 25-10-5, issue a mutual order enjoining both petitioner and respondent from committing acts of domestic abuse unless:

(1) Both the petitioner and the respondent personally appear;

(2) The respondent alleges, under oath, the existence of domestic abuse by stating the specific facts and circumstances of the domestic abuse;

(3) The court finds, by a preponderance of the evidence, that domestic abuse has taken place.

25-10-5.3. Court to require instruction in parenting as part of sentence in certain convictions -- Exception. If any person is convicted of a crime involving domestic abuse, and that person is the parent, guardian, or custodian of a minor child who resides with that person or the victim of the crime, the court shall include as part of the sentence, or conditions required as part of the suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services. However, this section does not apply to any person convicted and imprisoned for any felony for such a duration that there is no expectation of release for at least four years.

25-10-6. Ex parte temporary protection order. When an affidavit filed with an application under this chapter alleges that immediate and irreparable injury, loss, or damage will result before an adverse party or his attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and granting relief as the court deems proper, including an order:

(1) Restraining any family or household member from committing acts of domestic abuse;

(2) Excluding any family or household member from the dwelling or the residence of the petitioner.

25-10-7. Limited duration of temporary order -- Service on respondent. An ex parte temporary protection order is effective for a period of thirty days except as provided in § 25-10-7.1. The respondent shall be personally served forthwith with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing.

25-10-7.1. Temporary order effective until order under § 25-10-5 served. If an ex parte temporary protection order is in effect and a judge issues a protection order pursuant to § 25-10-5, the ex parte temporary protection order remains effective until the order issued pursuant to § 25-10-5 is served on the respondent.

25-10-8. Security not required of petitioner -- Exception. The court may not require an undertaking or other security of any party to a petition for an order of protection other than in exceptional circumstances.

25-10-9. Departure of petitioner from household not waiving right to relief. A person's right to apply for relief under this chapter may not be affected by the departure of that person from the residence or household to avoid abuse.

25-10-10. Modification of order. Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.

25-10-11. Real estate titles not affected. No order issued pursuant to this chapter may affect title to real estate.

25-10-12. Delivery of order to law enforcement agencies. The petitioner may deliver an order for protection granted pursuant to this chapter within twenty-four hours to the local law enforcement agency having jurisdiction over the residence of the petitioner. Each appropriate law enforcement agency shall make available to other law enforcement officers information as to the existence and status of any order for protection issued pursuant to this chapter.

25-10-13. Violation of order as misdemeanor or felony. If a temporary protection order or a protection order is granted pursuant to this chapter, and the respondent or person to be restrained knows of the order, violation of the order is a Class 1 misdemeanor. If any violation of this section constitutes an assault pursuant to § 22-18-1.1, the violation is a Class 6 felony. Any proceeding under this chapter is in addition to other civil or criminal remedies.

25-10-22. Effect of divorce or other civil proceedings prior to criminal proceedings. In any action involving domestic abuse, the court may not:

(1) Dismiss any charge or delay disposition of the domestic abuse action because of the pendency of a divorce or any other civil proceeding, unless agreed to by all parties, including the victim;

(2) Require proof that either party is seeking dissolution of marriage prior to instigation of criminal proceeding.

25-10-23. Conditional bond -- Violation as misdemeanor. If bond for the defendant in any domestic abuse action is authorized, a condition of no contact with the victim shall be stated and incorporated into the terms of the bond. Willful violation of any such no contact provision is a Class 1 misdemeanor.

25-10-24. Surrender of weapon by defendant. The court may require the defendant to surrender any dangerous weapon in his possession to local law enforcement.

25-10-25. Convicted defendant prohibited from contacting victim. The court may order that any defendant convicted of a crime involving domestic abuse be prohibited from contact with the victim and the sheriff shall give the victim a copy of any such order.