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EspañolWhat is the legal definition of domestic abuse in South Dakota?
This section defines domestic violence for the purposes of getting a protection order against domestic abuse. Domestic violence in South Dakota is when a family or household member does any of the following to you:
- causes physical harm or bodily injury;
- attempts to cause physical harm or bodily injury;
- inflicts fear of imminent physical harm or bodily injury; and/or
- stalks you.1
1 SDCL § 25-10-1(1)
What types of protection orders against domestic abuse are available? How long do they last?
There are two types of protection orders against domestic abuse available in South Dakota, temporary and final.
A temporary protection order is granted on an emergency basis. A judge can grant you a temporary “ex parte” order without prior notice to the abuser if you can convince the judge that you will face immediate injury, loss or damage unless the order is granted. It is effective for a period of 30 days until the court hearing on your final protection order. If the judge believes there is “good cause” to delay the hearing, known as granting a “continuance”, it can be delayed for another 30 days or longer if the parties agree or if law enforcement cannot find the respondent to serve him/her with the ex parte protection order. If a continuance is granted, the court must extend the ex parte temporary protection order until the rescheduled hearing date.1
You must attend the scheduled court hearing to get a final protection order. at the hearing, you and the abuser will both have a chance to present evidence and testimony and the judge will decide whether or not to give you the order. A final protection order can last for up to five years.2
1 SDCL §§ 25-10-6; 25-10-7; see also Temporary Order of Protection on the South Dakota Unified Judicial System website
2 SDCL § 25-10-1; see also Permanent Order of Protection on the South Dakota Unified Judicial System website
What protections can I get in a protection order?
A protection order can:
- order the abuser to avoid all personal contact with you;
- order the abuser to move out of and/or stay away from your home, business, school or other locations;
- order the abuser to stop all harassing, threatening and violent behavior;
- order temporary custody and/or visitation;
- order temporary child support;
- order the abuser to attend counseling;
- order parenting classes by the Dept. of Social Services;
- order the abuser to surrender all firearms, and bar him/her from buying or transporting firearms;
- order the abuser to do anything else you ask for and the judge agrees to.1
Whether a judge orders any or all of the above depends on the facts of your case.
1 SDCL § 25-10-5
In which county can I file for a protection order?
You can file a petition in the county where you live or in the county where the abuser lives.1
1 SDCL § 25-10-2
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.
