RESTRAINING ORDERS

Elder abuse and negligence can happen to anyone at their home, hospital, or care facility. We can assist with elder abuse and negligence at Nursing Homes, Crisis Management, Ombudsman Referrals, Injuries, Physical Injuries, Emotional or Behavioral Changes, End of Life Decisions, Life Care Planning, and Mental Health Incompetencies. We focus our practice on the victims of abuse, neglect, injury, and medical malpractice.

Abuse and Negligence can occur at home, home health agencies, assisted living facilities, residential care facilities, skilled nursing facilities, hospitals, during transportation, treatment, or examination at the doctor's office.

What Is Elder or Dependent Adult Abuse?

Abuse of an elder or a dependent adult is an abuse of:

Someone 65 years old or older; or
A dependent adult is someone between 18 and 64 that has certain mental or physical disabilities that keep him or her from being able to do normal activities or protect himself or herself.

The law says elder or dependent adult abuse is:

Physical abuse, neglect, financial abuse, abandonment, isolation, abduction (taking the person out of the state against his or her will), or other behavior that causes physical harm, pain, or mental suffering; OR
Deprivation by a caregiver of things or services that the elder or dependent adult needs to avoid physical harm or mental suffering.

Read about the law in Welfare and Institutions Code section 15610.07.

If you are an elderly person or a dependent adult being abused in any of these ways or you feel afraid or controlled by a family member, a spouse/partner or former spouse/partner, or a caregiver, it may help you to talk to a counselor, even if you do not want (or are not sure if you want) to ask for legal protection. Find counselors and resources in your county.

Amended Code of Civil Procedure § 377.34 now permits damages to be recovered for a decedent’s pain, suffering, or disfigurement, in an action brought by the decedent’s personal representative or successor in interest, if the action or proceeding was granted a specified preference under Code of Civil Procedure section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. The amendment requires plaintiffs recovering under this statute to report their awards to the Judicial Council, and the Judicial Council will provide this information to the Legislature.

Nursing Home Abuse or Caregiver Neglect can manifest itself by:

Mental Status Changes
Frequent Falling
Unsanitary Environment
Bedsores, Wounds, Infestations, Bruising
Weight Changes
A decline in functioning or new condition
Frequent ER visits
Change in general appearance
Financial abuse or disappearance of belongings
Complaints of lack of attention

The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) (Welf & I C §§15600–15675) mandates reporting of elder abuse to an adult protective services (APS) agency or local law enforcement agency (or to the local ombudsman or law enforcement where the abuse occurred in a long-term care facility) provides for the investigation of such reports.

EADACPA defines an "elder" as a person residing in California who is 65 years of age or older. Welf & I C §15610.27. "Abuse of an elder or dependent adult" includes any of the following: (1) physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (2) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (3) financial abuse, as defined in Welf & I C §15610.30. Welf & I C §15610.07.

Elder or Dependent Adult Abuse Restraining Orders

You can ask for an elder or dependent adult abuse restraining order if:

You are 65 or older, OR
You 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 or abandonment,
- Treatment that has physically or mentally hurt you, or
- Deprivation (withholding) by a caregiver of basic things or services you need so you will not suffer physically, mentally, or emotionally.

It is possible that you may qualify for an elder or dependent adult abuse restraining order AND a domestic violence restraining order (like if the person abusing you is a spouse or partner, or a child or grandchild). If this is your case, talk to a lawyer or legal aid agency to find out what is the best option for you

What a restraining order CAN do

A restraining order is a court order. It can order the restrained person to:

Not contact or go near you, your children, other relatives, or others who live with you;
Stay away from your home, work, or other places you go to a lot;
Move out of your house (even if you live together); and
Not have a gun.

Once the court issues (makes) a restraining order, it goes into a statewide computer system. This means that law enforcement officers across California can see there is a restraining order in place.

Effect of a restraining order on the restrained person

For the person to be restrained, the consequences of having a court order against him or her can be very severe:

He or she will not be able to go to certain places or to do certain things.
He or she might have to move out of his or her home.
He or she will generally not be able to own a gun. (He or she will have to turn in, sell or store any firearms he or she has and not buy a gun while the restraining order is in effect.)
The restraining order may affect his or her immigration status. If you are worried about this, talk to an immigration lawyer to find out if you will be affected.

If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.

Emergency Protective Order (EPO)

An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So a police officer that answers a call because of serious violence or a serious threat can ask a judge for an emergency protective order at any time of the day or night. In elder and dependent adult abuse cases, you can ask for an EPO, but not if the sole abuse you are suffering is financial abuse.

The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.

To get a more permanent order, you must ask the court for a temporary restraining order (also called a “TRO”).

Temporary Restraining Order (TRO)

When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order.

Temporary restraining orders usually last about 20 to 25 days, until your court hearing date.

“Permanent” Restraining Order (Restraining Order After Hearing)

When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 5 years.

At the end of those 5 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.

Criminal Protective Order or “Stay Away” Order

Sometimes, when there is an incident of violence or other elder or dependent adult abuse (or series of incidents), the district attorney will file criminal charges against the abuser.

This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.

The Restraining Order Process

When people ask for an elder or dependent adult abuse restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:

1. The person wanting protection (or a court-approved guardian or conservator of the protected person) files court forms asking for the restraining order. There is NO fee to file.

2. The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner.

3. If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until the court date. The court date will be on the paperwork. These temporary orders can include issues like:

Ordering the restrained person to stay away from the protected person (and other protected people);
Ordering the restrained person not to have any contact with the protected person (and other protected people); and
Ordering the restrained person to leave the home if he or she lives with the protected person.

4. The person asking for protection will have to “serve” the other person with a copy of all the restraining order papers before the court date. This means that someone 18 or older (NOT involved in the case) must hand-deliver a copy of all the papers to the restrained person.

5. The restrained person has the right to file an answer to the restraining order request, explaining his or her side of the story.

6. Both sides go to the court hearing.

If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will NOT be a restraining order.
If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.

7. At the hearing, the judge will decide to continue or cancel the temporary restraining order. If the judge decides to extend the temporary order, the “permanent” order may last for up to 5 years.

https://www.courts.ca.gov/1058.htm All content copies from https://www.courts.ca.gov/1058.htm

Who is the mandated reporter?

Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not that person receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a "mandated reporter." Welf & I C §15630(a). A mandated reporter who, in his or her professional capacity, or within the scope of his or her employment, has observed or has knowledge of an incident that reasonably appears to be physical abuse, abandonment, abduction, isolation, financial abuse, or neglect, or is told by an elder or dependent adult that he or she has experienced behavior constituting such abuse, or reasonably suspects that abuse, must report the known or suspected incident of abuse to APS or the local law enforcement agency, or to the ombudsman or law enforcement if the abuse occurred in a long-term care facility. Welf & I C §15630(b)(1).

Services Available through the Adult Protective Services

Investigations; Needs assessments; Remedial and preventive social work activities; Necessary tangible resources such as food, transportation, emergency shelter, and in-home protective care; The use of multidisciplinary teams; and A system in which abuse can be reported on a 24-hour basis.

Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.

The domestic violence laws say “abuse” is:

Physically hurting or trying to hurt someone, intentionally or recklessly;
Sexual assault;
Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.

The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets.