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ABUSE
INDEX
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LAWS -
ABUSE
SHELTERS
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LETTER TO VICTIMS
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MAIN INDEX
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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25-10-11.
Real estate titles not affected.
No order issued pursuant to this chapter may affect
title to real estate.
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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.
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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.
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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.
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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.
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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.
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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.
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