IF YOU ARE IN DANGER, CONTACT THE POLICE IMMEDIATELY – THEY CAN OBTAIN AN EMERGENCY PROTECTIVE ORDER 24 HOURS A DAY.
You can request an elder abuse restraining order for yourself or on behalf of someone else. The petitioner (the person for whom protection is sought) must be:
- 65 years old, or older; or
- Between 18 and 64 and have certain mental or physical disabilities that keep him or her from being able to engage in activities or protect himself or herself; and
The petitioner is a victim of:
- Physical or financial abuse, neglect/abandonment, treatment that mentally hurt; or
- Deprivation by a caregiver of basic things/services so he or she will not suffer physically, mentally, or emotionally.
This page only explains how to file an elder abuse restraining order in California. We also provide information on how to defend a restraining order, file a civil harassment restraining order, a workplace violence restraining order and a domestic violence restraining order.
Unlike other kinds of restraining orders, an elder abuse restraining order can be filed on behalf of an adult by another adult, if the adult for whom protection is sought qualifies. This allows victims who are otherwise unable to request assistance to receive protection.
How to Request an Elder Abuse Restraining Order
The person filing the petition will need to fill out, sign, and file the following documents:
- Form EA-100 → this form provides the judge with the details of your particular circumstances, and what you are asking the court to do.
- Form CLETS-001 → this form provides law enforcement with information about the person to be restrained.
- Items 1 and 2 of the Form EA-109 → this form will tell both you and the party you are seeking to restrain when to come to court for the hearing.
- Items 1, 2 and 3 of the Form EA-110 → this form requests that a temporary restraining order be granted until the hearing date (if you need more space you can use Form MC-020 as needed).
File the Documents
File the documents at the proper courthouse with the court clerk. The clerk may give you additional conditions to adhere to and may provide you with additional documents that that specific courthouse requires you to file before a temporary elder abuse restraining order can be granted.
You will receive a hearing date and the judge will review Form EA-110 and sign it if a temporary restraining order is granted. If the judge does not grant the temporary restraining order, you will still receive a hearing and an opportunity to present your full case and request a permanent restraining order. The only difference between the temporary order being granted and not being granted is that in the time period of approximately one month between the filing of the temporary restraining order request and the hearing on the permanent restraining order, no restraining will be in effect during that time if the temporary order is not granted. All other service requirements and filing requirements remain the same.
While the judge’s ruling with respect to the temporary restraining order can sometimes give the parties an indication of what the ruling will be after the hearing on the permanent order, it is common for permanent orders to be denied after temporary orders have been granted, and it is also common for temporary orders to be denied only to have a judge grant a permanent order after all evidence is presented and the court hears from both sides.
The judge may also make changes to the parameters of the temporary restraining order you requested. He or she can increase or decrease the requested distance the respondent is permitted to travel with respect to the petitioner. The judge can also delete certain conditions that he or she believes are not necessary or are unfair, such as conditions that would impede the respondent from traveling to work or being able to come and go from their home.
Serve the Documents on the Other Side
The person from whom protection is sought must be personally served (handed) with all documents filed and be served with blank copies of:
- Form EA-120.
- Form EA-120-INFO.
- Form EA-800.
- The person from whom protection is sought must be served by the deadline the judge writes on documents (item 5; pg 2 of Form EA-109).
- File Proof of Service Form EA-200. If a person not served/not properly served you can file Form EA-115.
The petitioner (the side seeking protection) cannot serve the documents on the respondent himself or herself. There must be personal service from a non-party (no person seeking protection, whether it is the petitioner or another person) who is over 18 years old at the time of the service. Again, the documents cannot be mailed, sent via Federal Express, or through any other carrier. They must be delivered by an adult and handed to the respondent. The Los Angeles County Sheriff’s Department can serve these documents for the petitioner. A process server can also serve documents for a petitioner; there will be a fee for that service.
The Other Side’s Response & Hearing
The other party must, after being served with your Restraining Order paperwork, file and serve a response. If the restraining order is granted at the hearing, fill out and file Form EA-130. If the restraining order is not granted, no further restraining orders can be filed based solely on the conduct alleged in the initial restraining order. There are options for a petitioner that is unsuccessful, however: he or she may appeal the restraining order judgment (only mistakes related to issues of law may be appealed, not alleged errors with respect to the weight of the evidence – you cannot appeal because the judge did not believe you as you thought he or she should have) or may file a new restraining order (that new restraining order request must include allegations of new inappropriate conduct; it may reference the prior conduct but that may not be the basis for a new request).
At the hearing, each side will have an opportunity to present evidence in the form of live testimony and through documentary exhibits. These exhibits can be actual documents or can be in the form of pictures and / or videos. Each side will have an opportunity to cross examine the other with respect to any evidence introduced in the form of exhibits and will have the opportunity to cross examine any witnesses. Either side may subpoena witnesses to testify on their behalf and can use the power of the court to enforce those subpoenas (evidence in restraining order hearings works the same way as evidence in all litigation matters in California). It is always best to have the assistance of a qualified attorney when requesting or contesting (see below) an elder abuse restraining order.
Some courts request or require that all restraining order matters (or some restraining order matters) go to mediation prior to a hearing. Mediation is where a neutral party, usually a professional mediator, listens to both sides’ arguments and attempts to help each side come to a settlement. The mediator does not work for either side and has no personal interest in the outcome of the case. If the matter does not resolve via a settlement, it will proceed to a restraining order hearing, where each side may introduce evidence in the form of testimony, audio recordings, video, and documents. Neither side is required to settle the case in mediation and either party can insist on proceeding to a hearing.
How to Fight an Elder Abuse Restraining Order
If someone is trying to obtain an Elder Or Dependent Adult Abuse Restraining Order against you and you wish to defend the request, they need to serve you with the following forms:
- Form EA-100 – this form has all the details of the restraining order and what is being alleged against you. Read this form carefully because it tells you what you are and are not allowed to do.
- Form EA-109 – this form tells you the date, time, and place of the court hearing.
- A blank copy of Form EA-120.
You need to read the forms that the other party filed with the court and served on you to find out exactly what they are alleging. Then fill out the Form EA-120 with your response. You need to respond with provable facts that dispute what is being alleged against you. Then file the form with the court and mail it to the other party.
Attach any documents that help with your case to the hearing. If there are any witnesses, get their statements in writing and bring them to court with you whenever possible. If you have any photographs, a police report or any other evidence, make sure to attach them to your response and to bring it to the hearing. At the hearing, the judge will decide whether or not the restraining order should be granted against you. Prior to that decision, however, you will have an opportunity to cross examine the petitioner’s (the person seeking protection) witnesses and challenge any documentary evidence. If your witnesses counter what the petitioner’s witnesses discuss, that will be advantageous.
Be extremely careful not to appear insensitive to the court’s concerns or to discuss irrelevant information and facts. The only evidence that the court will be concerned about are the circumstances leading up to the request being heard. Referencing treatment of other litigants who you believe were given an unfair advantage can be extremely detrimental and should not be made. Judges appreciate, because of their large restraining order calendars, parties who are concise and only discuss important facts that will assist them in their decision making process.
Elder Abuse can Lead to Criminal Charges
California Penal Code Section 368 provides that individuals who engage in certain conduct with respect to elderly individuals can, in addition to having a restraining order issued against him or her, can face serious criminal charges.
Specifically, the code section mandates that any individual commits elder abuse when he or she knows (or should know) that an individual is an elderly adult (typically over 65 years of age) and under the circumstances, allows or causes that elderly person to suffer unjustifiable physical or mental pain, is guilty of violating this code section. Further, allowing an elderly person to be placed in a situation where his or her health is in danger, this code section is violated as well. Finally, emotional abuse in the form of mental suffering or any other recognizable form, neglecting an elder, or financial abuse (stealing, convincing an elderly person to pay for unjustified expenses, etc.) is all conduct that constitutes elder abuse and can result in a criminal charge and an elder abuse restraining order.
A violation under this code section carries various penalties, depending on the severity of the crime itself. Absent injury of prior convictions, a violation of Penal Code Section 368 can be considered a misdemeanor with not possibility for a sentence of state prison (county jail custody is a possible sentence for this misdemeanor). However, if injury or death occur in the commission of elder abuse by any person, the crime is considered a “wobbler.” A “wobbler” is a crime that can be considered a misdemeanor or a felony, at the discretion of the judge and prosecutor (either, at certain times, can reduce a felony “wobbler” to a misdemeanor). A felony carries the potential of a sentence to California State Prison.
For an individual to be guilty of misdemeanor elder abuse, it must be proven that you (or another person acting with your consent) willfully or with gross criminal negligence personally subjected an elderly person to unjustified mental anguish or physical pain (unjustified). Further, it must be proven that you knew or should have known the elder individual’s age and it must be proven that the conduct occurred under circumstances that may have endangered the life or health of the senior citizen.
For a person to be convicted of felony elder abuse in California, it must be proven that you (or another person acting with your consent) willfully or with gross criminal negligence personally subjected an elderly person to unjustified mental anguish or physical pain (unjustified). Further, it must be proven that the conduct occurred under circumstances likely to produce injury or death and it must be proven that you knew or should have known that the individual was an elderly person.
Defenses to elder abuse in a criminal case are often similar to elder abuse restraining order defenses. Often, when an elderly person makes a financial gift to any person, other individuals who believe that they should be entitled to that money allege elder abuse. Simply gifting monies or other items to a person is not alone enough evidence of elder abuse, either in a restraining order context or in a criminal case. If an alder abuse restraining order (or elder abuse criminal charges) have been filed against you, always seek the help of a qualified restraining order attorney or a qualified criminal defense attorney.