Personal Injury, Probate, Employment, & Complex Litigation


Elder Abuse Restraining Order

In California, the most typical use of a restraining order is when someone has performed threatening or harassing behavior against you which makes you fear for your health or safety. However, the California legislature has developed an entirely separate pathway to get a restraining order if someone’s actions constitute elder abuse.

If someone is committing Elder Abuse as codified in Welfare and Institutions Code section 15610.07 then the abused elder or their conservator or trustee can seek a restraining order against the abuser.

Under Welfare and Institutions Code section 15657.03 the abused can file a petition for restraining order against the abuser. They must prove to the court through “reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.” Courts have interpreted that language to mean that a court can order a restraining order through a showing of preponderance of the evidence (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128.). This is a major departure from the usual statutory scheme which requires a showing of clear and convincing evidence. However, it can carry with it the same penalties (and more) than a normal restraining order.

For instance, under a usual civil restraining order, the judge cannot order an individual to move out, that is an unlawful detainer action. However, under Welfare and Institutions Code section 15657.03 the legislature explicitly provides the court authority to order the abusing party to move out of a residence.

As a result, restraining orders pursuant to Welfare and Institutions Code section 15657.03 are a powerful tool, and a difficult one to defend against. Thus, it is highly recommended that you seek an attorney to help you either if you are seeking a restraining order or a petition for one has been filed against you.