Elder or Dependent Adult Abuse Restraining Orders
Section 15657.03 of the California Welfare & Institutions Code allows a court to issue an Elder or Dependent Adult Abuse Restraining Order (known as an “EARO”) against any person in order to prevent recurring physical, emotional or financial abuse of an elder or dependent adult. Under this law, an “elder adult” is defined as an individual 65 or older, and a “dependent adult” is someone aged 18 to 64 with mental or physical disabilities that limit their ability to carry out normal activities or protect their own rights, regardless of whether they live independently or not. To initiate the process, a “Petitioner” (the person seeking the court’s protection) files a petition in the Superior Court against a “Respondent” (the person accused of the abuse). A Restraining Order is a court order that limits the Respondent’s actions to put a stop to the abusive conduct.
What Does an EARO Do? An EARO forbids the Respondent from having physical contact and communicating with the Petitioner. It usually also orders the Respondent to stay a specified distance (often 100 yards) away from the Petitioner’s person, home and vehicle. Such “no-contact” and “stay-away” orders sometimes explicitly protect the Petitioner’s household members as well. In limited situations the court may include a “move-out order,” compelling the Respondent to move out of the Petitioner’s home. The court can tailor the Restraining Order as necessary to put a stop to the abuse. The order can also make exceptions for certain conduct at the Petitioner’s request; for example, the order can allow for peaceful phone or written contact if the Petitioner requests it.
How to get an EARO. The first step is to file a petition with the court. The person suffering the abuse or someone with the power to act on the their behalf (e.g., a person who has power of attorney, is named as guardian ad litem, or is a court-appointed conservator) must file a Request for Elder or Dependent Adult Abuse Restraining Orders and related forms with the Superior Court in the county where the abuse occurred or where the Petitioner lives. There is no court filing fee for an EARO.
Is an Attorney Necessary for an EARO? Hiring an attorney will make the process easier and less stressful but is not strictly necessary for petitioners who feel comfortable preparing forms, following detailed instructions, and appearing before a judge without an advocate. In Santa Clara County, some logistical assistance is offered at the Restraining Order Help Center located in the Family Justice and Administration Center. The “Self-Help Center,” as it is known, does not give legal advice but is a good resource for information about court forms and procedures.
Completing the Petition: The Petitioner should do their best to fully complete the court forms that make up the petition. If an answer is unknown, it is usually permissible to leave the field blank. For example, uncertainty over the abuser’s date of birth should not prevent the Petitioner from seeking a Restraining Order. It is important to provide the Respondent’s full name and address and an accurate and detailed description of the abuse, including dates and other relevant details. The completed petition will then be filed with the court.
Judicial Review: A judge will review the petition quickly (usually within 48 hours after filing) and schedule a court hearing for about a month later. Depending on the severity of the abuse alleged in the petition, the judge may issue a Temporary Restraining Order (“TRO”) against the Respondent to last until the hearing. The Petitioner will receive file-stamped copies of the documents submitted as part of the petition, along with any documents issued by the court like the TRO and a Notice of Hearing.
Service on the Respondent: It is the Petitioner’s responsibility to ensure that the Respondent is served with a copy of the petition and related documents. If you (as Petitioner) are not represented by an attorney, the Self-Help Center can help you gather all the necessary documents for service. There is a form you can file to ask the county Sheriff’s Office to serve the Respondent at his or her home or work. There is no fee for this service and the court directs the necessary forms to the Sheriff’s Office. If the Sheriff’s Office succeeds in serving the Respondent, they will file a Proof of Service with the court.
If the Sheriff’s Office has made three failed attempts to serve the Respondent, you must make other arrangements for service. Any adult (other than the Petitioner) can serve the Respondent. The person who does so must complete a Proof of Service for you to file with the court. The judge cannot “hear” your case until the Respondent has been served. If you are unable to serve the Respondent before the hearing date, you can request additional time at the hearing. The court will typically grant this request and “continue” the hearing to a new date.
At the Hearing: It is very important that all parties attend the hearing. If the Respondent has been served (and a Proof of Service filed) and they fail to appear at the hearing, the judge may grant a Restraining Order in their absence. If the Respondent does attend, the law allows them to request a continuance for additional time to prepare. This means the judge may postpone the hearing for several weeks to give the Respondent time to hire an attorney or otherwise prepare for the hearing.
Once these formalities are resolved and your matter is being heard, you will make your case to the judge for a “permanent” Restraining Order, to last up to the statutory maximum of five years. You will have the opportunity to tell your story to the judge and call any witnesses you have. The Respondent will have the same opportunity. In order to grant an EARO, the judge must determine that you have proven your case by a “preponderance of the evidence.” This means that the judge must find your version of events to be more believable than the opposing side’s.
If the judge determines abuse has occurred, they will issue a Restraining Order that lasts for a period of time they deem appropriate, typically between one and five years.
This type of court order is civil, not criminal, but if the Respondent violates the order, the violation is a crime punishable by a fee and jail time.
Summary of the EARO timeline:
An elder or dependent adult, or another person with the authority to act for them, files a petition with the court.
A judge reviews the petition, may or may not issue a Temporary Restraining Order, and schedules a hearing.
A Sheriff’s deputy (or other adult who is not the Petitioner) serves the Respondent with a copy of the petition, Notice of Hearing, TRO (if applicable), a blank Response to Request for EARO, and other documents required by law.
The person who served the Respondent files a Proof of Service with the court.
During this time before the hearing, the Respondent may file (and serve) a Response to Request for EARO.
The parties go to court and present their cases to the judge. Witnesses and other evidence can be introduced.
Either at the conclusion of the hearing or in the days that follow, the judge makes a decision.
Most EAROs last for one to five years. They can be renewed if necessary.
If you or a loved one has been the victim of elder or dependent adult abuse in Santa Clara County and would like to explore your legal options, contact Caplan Wilkinson for a consultation.
