You can request an elder abuse restraining order if you are:
- 65 years old, or older; or
- Are between 18 and 64 and have certain mental or physical disabilities that keep you from being able to do normal activities or protect yourself; and
You are a victim of:
- Physical or financial abuse, neglect/abandonment, treatment that mentally hurt; or
- Deprivation by a caregiver of basic things/services so you 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.
Fill Out the Proper Documents
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 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.
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 or bring them to court with you. 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.
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.