Stalking Order of Protection
Also See: South Dakota Stalking Statute
Also See: South Dakota Civil Stalking Law
§22-19A-8 Petition for Protection Order -- Procedure
There exists an action known as a petition for a protection order in cases of stalking, in cases of physical injury as a result of an assault, or in cases of a crime of violence as defined in subdivision 22-1-2(9). Procedures for the action are as follows:
(1) A petition under this section may be made against any person who violates § 22-19A-1 or against any other person against whom stalking or physical injury as a result of an assault or in cases where a crime of violence is alleged;
(2) A petition shall allege the existence of (a) stalking or (b) physical injury as a result of an assault or (c) a crime of violence, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the stalking or the physical injury as a result of an assault or crime of violence;
(3) A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties.
The clerk of the circuit court shall make available standard petition forms with instructions for completion to be used by a petitioner. The attorney general shall prepare the standard petition form.
§22-19A-9 Filing Petition for Protection -- Venue
A petition for relief under §§ 22-19A-8 to 22-19A-16, inclusive, 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.
§ 22-19A-10. Hearing on petition for protection—Date—Notice. (2009)
Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless for good cause the court grants a continuance. 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.
§22-19A-11 Petition for Protection Order -- Relief
Upon notice and a hearing, if the court finds by a preponderance of the evidence that stalking has taken place, the court may provide relief as follows:
(1) Restrain any party from committing acts of stalking or physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9);
(2) Order other relief as the court deems necessary for the protection of the person seeking the protection order, including orders or directives to law enforcement officials.
Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.
§22-19A-12 Ex Parte Temporary Order Pending Full Hearing on Petition for Protection
If an affidavit filed with an application under § 22-19A-8 alleges that immediate and irreparable injury, loss, or damage is likely to result before an adverse party or the party's 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 restraining any person from committing acts of stalking or physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9). An ex parte temporary protection order is effective for a period of thirty days unless for good cause the court grants a continuance. No continuance may exceed thirty days. If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. 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.
§ 22-19A-13. Petition for order of protection -- Security not required. (1997)
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.
§ 22-19A-14 Order of Protection -- Modification
Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.
§ 22-19A-15. Order of protection -- Delivery to law enforcement
The petitioner may deliver an order for protection granted pursuant to §§ 22-19A-8 to 22-19A-16, inclusive, 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 §§ 22-19A-8 to 22-19A-16, inclusive.
§ 22-19A-16 Violation of Protection Order -- Penalties
If a temporary protection order or a protection order is granted pursuant to §§ 22-19A-8 to 22-19A-16, inclusive, 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. If a respondent or person to be restrained has been convicted of, or entered a plea of guilty to, two or more violations of this section, the factual basis for which occurred after the date of the second conviction, and occurred within five years of committing the current offense, the respondent or person to be restrained is guilty of a Class 6 felony for any third or subsequent offense. Any proceeding under §§ 22-19A-8 to 22-19A-16, inclusive, is in addition to other civil or criminal remedies.
§ 22-19A-17. Defendant prohibited from contacting victim prior to court appearance (2010)
While in custody after arrest for assault or stalking, no defendant may have or be permitted any contact or communications, either directly or by means of a third party, with the victim or the family or household members of the victim, until the defendant's initial court appearance or until such contact or communication is specifically authorized by the court. Willful violation of this section is a Class 1 misdemeanor.
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