San Diego Restraining Order Attorney is a highly rated law firm that handles cases of physical, financial, and emotional abuse cases in and around San Diego, CA. The attorneys have in-depth knowledge about domestic violence, especially on the issues of elder abuse restraining orders. You might think these cases are not common in California, but they are. So, if you are facing an elder abuse restraining order or want to file one against someone, it is wise to have a great restraining order attorney. Remember an elder can be abused by someone outside the family, which means it is not always a domestic violence case hence requiring a separate restraining order.
What is Elder Abuse Under California Law?
According to the California Welfare & Institutions Code 15657. 03, a dependent adult is a person who is aged between eighteen (18) and sixty-four (64) years and has physical or mental impairments that affect their ability to perform regular routines. An elder under the same California Welfare & Institutions Code 15657.03 is referred to as someone who is aged sixty-four (64) and above. When an elder experiences physical abuse, mental or emotional abuse, financial abuse, isolation or abandonment, neglect, or deprived of goods and services that are essential for preventing suffering, they are being abused.
What is a Restraining Order?
A restraining order is defined as a court order that protects people against abuse. So, whenever you feel that you need someone to stay away from you, you need it. Restraining orders fall under three categories.
- Emergency Protective Order (EPO)
Under the California Law Family Code Section 6250, an officer of the law has the powers to request the court for necessary protection for a person facing domestic abuse or violence. However, the officer must have a good reason to believe the person experiencing the harm is in immediate danger from the person they want to keep off. Only police officers are required by the law to request for an EPO. To ensure that whenever someone needs immediate protection, an emergency restraining order is issued, there is always a judge available around the clock to issue the order to law enforcement officers.
Family Code Section 6251 states that an emergency restraining order will only be valid if a child or dependent adult is at risk of being abducted or abused. It will also be valid if there is enough evidence to make the judge or commissioner believe the person requesting a restraining order is in danger of domestic violence and that the issuance of the EPO will prevent the abuse of an older adult from occurring or being repeated. If an elder is in immediate danger, the emergency restraining order will remain valid.
The order takes effect immediately and lasts for one (1) week. I some cases, the said week can be five (5) working days or the whole seven (7) days of the week. In case the person you need protection lives in the same house with you, the judicial officer can ask them to vacate the house. In case you are being abused at work, the judge can only issue a restraining order if you are being stalked. An EPO is only granted to protect the person being abused until the court issues a temporary restraining order.
- Temporary Restraining Order (TRO)
The TRO last for between twenty (20) to twenty-five (25) days, which is the time the judicial officer takes to hear and determine your case. At the end of the temporary restraining order, the judge rules in a hearing whether to issue a permanent restraining order or not.
- Permanent Restraining Order
For this, a court hearing is held where the judge determines if the person requesting protection from abuse is genuinely in danger and requires protection of the law. A civil harassment restraining order can go up to three (3) years while for domestic violence, it is five (5) years.
How Does the Order Help People?
Most people wonder how a written document from the court is going to protect them against abuse. If you are an elder and you get a restraining order, the court protects you from harassment, threats, and physical abuse. The person abusing you is also ordered not to get near you or contact you in any form.
Who Can Apply For a Restraining Order on an Elders Behalf?
In some situations, the elder facing the abuse might not be in a position to apply for a restraining order. Some of the people who can do it on behalf of the elder include a trustee of the elder, an attorney in fact of an elder who applies for the order because of a power of attorney. Another person who can make the application is one who is appointed as a guardian or a person legally permitted to do so by the law.
How Much Does The Process Cost?
No one should be charged anything when applying for a restraining order. A marshal or sheriff can help with the process which is free of charge. However, for those who opt for third parties or hire agencies to apply for the restraining order, there will be charges. However, if you win the case, all the court fees will be refunded by the person who lost it.
What Forms Do You Need to Complete?
A person applying for a restraining order is required to fill Form EA- 100 which is a request for elder restraining law. The next thing is to request Form CLETS -001 for confidential CLETS information. Do not forget to fill out items 1 and 2 of Form EA -109, which is a notice for a court hearing. The other crucial one is the temporary restraining order Form EA -110. In this form, fill items 1, 2, and 3. For those people who want to give a better insight to the judge on the reason why they are applying for the restraining order using more words, Form MC -025 should be requested for extra attachments.
If you don’t know where to find these forms, you can easily visit the local court website or Find them in a local court library or with your local court’s clerk. Request someone with expertise to review your forms and ensure that they have been appropriately filled. Make more than five (5) copies of the Forms that you have completed. One will be for the court, the other will be for the person you are seeking protection from and the rest you can keep.
What Should I Do to Get The Order?
If the person you are filing a restraining order on lives in San Diego or elsewhere, go to the superior court in the county where the abuse or the person abusing you lives in a file for the court order. Talk to the court clerk, and they will give you a case number and date of hearing on your Notice of Hearing Form. In some counties, you might be allowed to go directly to the judge who will go through the papers to determine whether to give the order or not. If you can’t access the courtroom directly, it is wise to find out from the clerk when you will be coming back.
How Soon Can I Get a Restraining Order?
If you filed an emergency restraining order, you should get it within 24 hours. For temporary restraining orders, return to the court when the clerk tells you and find out if the judge has issued the request or not. Check Form EA- 110 to see if the judge signed the TRO. If there is a court hearing date indicated on your form EA-109, keep in mind that it is the date when your TRO expires. The clerk will enter the restraining order in the database of the California Department of Justice, which helps all officers around California know that such a law exists. Not all the courts enter your details in this computer system. Check your Form EA -110 to see if the court allows you or the clerk to enter this information in the statewide computer system.
After that, get some of the copies you made and serve the papers to the restrained person. In this case, you should not be the person serving the papers. You are supposed to use a third party or is referred to as a server. A server, according to California law, must be over 18 years of age and should not be protected by the orders. The work of the server is to deliver copies of all the forms you have filed in court. Remember the case cannot go on if the restrained person is not served with the papers. It becomes even worse if you fail to serve the person with the paperwork since you are surviving on a restraining order that expires on the date of hearing. No court will issue a permanent restraining order if the restrained person fails to receive the papers.
It is advisable for elderly persons to rely on law enforcement officers to serve the paperwork. They don’t charge anything, and they ensure the papers are officially received. If you don’t want to use police officers, process serves, which are private businesses that help serve paperwork, can help you but at a fee.
What Steps Should You Follow When Serving the Papers?
Judges often indicate a deadline on your paperwork when you are supposed to serve the restrained party. The period is there to help the restrained person get a few days to respond and prepare for court. To find out the date by when you are supposed to serve the papers, check the court date on item three of Form EA- 109. Additionally, check the days written on issue five of page two in the same form. The difference between this number of days and the court date will give you the days you have to serve the papers.
When serving, ensure that the server does the process in person. Apart from serving copies of the paperwork you have filed in court, it is compulsory to send blank Form EA -120. This is the form for Response to Request for Elder or Dependent Adult Abuse Restraining Order. Form EA -120- INFO and Form EA -800 should also be served. These are for helping the restrained person respond and prepare for court.
Once the restrained person receives the paperwork, the server should fill Form EA -200 which is Proof of Personal Service. The server should give you this form so that you can file it with the court as proof of service. With this form, the restrained person cannot claim that they were not served. The only problem you can face despite having the form is if the server filled it incorrectly. Use an expert to review the Form EA -200 before filing it with the court. When submitting this proof of service form with the court's clerk, make sure you use the original copy but before that make five (5) copies for yourself. If the original Proof of Personal Service Form is filed after the date of hearing, it won’t be valid. Therefore, ensure you submit the form before the interview.
What Happens if The Restrained Person Wasn’t Served?
Something might happen after the restraining order is issued, and you are unable to undertake the service process. It means that the restrained person will not be served before the hearing. The TRO will expire on the date of hearing. Before then, if the restrained person is not served, request for an extension of the TRO so that you can have a new court hearing date. In this case, you are supposed to fill Form EA -115, which is a request to continue hearing. Also, fill out items 1 and 2 of Form EA -116. The form is for Order on Request to Continue Hearing. The forms should be delivered to the judge on the date of hearing or before for reviewing and signing. After these papers are signed, attach them to other court forms, including the temporary restraining order and serve them to the restrained party. The server should fill the proof of personal services and give you a copy which you should file with the court before the date of the new hearing.
What to Prepare When Going to a Hearing
When going to court, carry proof of violence and all the forms you filed with the court. These documents should include photos, medical and police reports, damaged property, threatening texts or letters, and financial papers that prove abuse. Carry Form EA -130 to the court too. If you have any witness statement, bring it with you to the court also. After all, the evidence is presented, and you are cross-examined, the judge will give a decision or ruling. You might get some of the orders you were requesting, some of them or even none. The case might also be postponed so that the restrained person can get more time to prepare.
Consequences of an Elder Abuse Restraining Order
The California law indicates that a civil court judge issues an elder abuse restraining order. After the order has been released, even if the older adult changes their mind, only the judge can terminate the order. A temporary restraining order is issued that goes for a period up to the date of hearing. The other is a permanent restraining order which lasts for up to five (5) years. Depending on the duration of these orders, the restrained person should stay away from the person being protected. Other consequences include being prohibited from owning a firearm, and it can also affect your immigration status if you don’t have the legal papers yet. Even if you go outside California where the restraining order was issued, it will still apply in the new state, and law enforcement officers from all over can see it.
Defense For an Elder Abuse Restraining Order
In California, when a restrained party or person is served, they must appear in court to explain what happened. Legal representation is not mandatory, but having one who understands domestic violence and elder abuse restraining order can be merit. Experienced restraining order attorneys in San Diego it increases the chances of a favorable outcome. The consequences are adverse, so get experienced attorneys once you are served.
What Happens When You Violate an Elder Abuse Restraining Order?
Failure to obey a restraining order can lead to arrest, sentencing, or fine. Some judges can give you both fines and jail time. The consequences of violating a law according to Penal Code 273.6 PC include one (1) year in jail, one thousand ($1,000) dollars in penalties or both. In the event, the violation of the orders was unintentional, get a criminal attorney for representation.
Contact a San Diego Restraining Order Attorney Near Me
There are separate court orders that protect elders depending on where the abuse took place. If you are abused by a family member or a total stranger call 619-728-6293 for a free consultation. Our San Diego restraining order lawyer will discuss your case with you and offer the best representation. Call today!