As with anything in the law, the devil is in the details. So what does the elder have to tell the judge to get the restraining order? The elder must show that he or she has been the subject of abuse within the previous 180 days. Abuse is one or more of the following:
- Physical abuse resulting in injury;
- Neglect that leads to physical harm;
- Abandonment by a care giver or other person with an obligation to care for the elder;
- Willful inflicting of physical pain;
- Using derogatory names, profanity, ridicule or coercion;
- Wrongfully taking or wrongfully threatening to take away money or property;
- Non-consensual sexual contact.
After showing that the elder has been subject to abuse in one or more of the forms described above, the elder will then have to convince the judge that he or she is in danger of future abuse by the same person. If the judge finds that abuse has occurred and there is a danger of further abuse the court must act. The judge will issue a restraining order preventing the abuser from abusing, intimidating, or interfering with the elder. If necessary to prevent further abuse, the court can prohibit the abuser from entering any premises where the elder might be found. If the elder lives with her abuser and owns or rents the home, the abuser my be ordered out of the home with a policeman sent to help with the removal.
When the abuser is served with the restraining order the sheriff will also give him or her a form to fill out to object to the restraining order. Most people accused of elder abuse will object. The person accused of abuse has thirty days in which to file the objection. Once the objection is filed a trial will be held within twenty-one days. Although the judge has a duty to protect the elder from a traumatic confrontation with the abuser, the trial takes place according to the same rules that govern other trials. Both sides call witnesses, offer exhibits, and argue their side of the case. After hearing all the evidence from both sides the judge will uphold the restraining order, dismiss it, or change it to reflect the evidence. The judge may also require one party to pay the attorney fees incurred by the other.
If the abuser, before or after trial, violates the provisions of a restraining order he or she will be arrested and charged with contempt of court. At the very least, the abuser will get a free ride to jail. What happens after that will depend on the severity of the violation.
Because elder abuse restraining orders are so powerful and so inexpensive, creative elders and their lawyers have pushed the limit of the law. I have seen a local judge refuse to grant an elder abuse restraining order because a neighbor of the elder used profanity in an argument about a property line. The observation was the law was not intended to protect anyone over sixty-five from rude neighbors. On the other hand, a judge in Multnomah County recently issued a restraining order preventing protesters in front of a business from shouting at the elderly owner. My feeling is that most judges will be ready and willing to protect an elder from real threats, but unwilling to apply the law to every angry interchange in which one of the participants happens to be over sixty five. A lot of sixty-five year olds are in pretty good shape and can take care of themselves--and the judges know it.
Had a situation where a 65 year old woman filed a restraining order against me citing three primary incidents. Each incident was a complete departure from reality. I had witnesses (6) for each incident that would have clearly testified and demonstrated she was lying. I hired an attorney to insure my case was presented properly. A hearing was set for me to challenge. Three days prior to the hearing she hired an attorney and the hearing was set over. All of my witness then had to be re-subpoenaed. She fired her attorney shortly thereafter and hired another. When we showed up for the rescheduled hearing she arrived without her second attorney. The court ran out of time and could not hear us despite our pleas that we had already been set over once. The drive time for my attorney and time sitting in court that day cost me close to $1,000. The hearing was set over again. More time off of work for my witnesses. It appeared that we may be set over again when we showed up for hearing date #3. At the last minute we were ushered into another court room as another judge tried to fit us in before his next hearings starting at 2:30. The petitioner went first, perjuring herself and slandering me. At the end of her testimony the judge determined she had no grounds under the family abuse prevention act and dismissed the restraining order. He then turned his attention on me asking if we had requested attorney’s fees. My attorney responded that we had. We were denied. We asked if we could call our witnesses to demonstrate the petitioner’s testimony was untruthful. Denied. I asked if I could make a statement. Denied. I was shocked, continue to be shocked and have a very low opinion of the "system". $5,000 spent to defend myself and I am not given the opportunity to present one iota of testimony. On top of that, the judge also explained that if she had filed under the elder abuse prevention act the RO may have stuck. A road map for the future. Nothing that happened during the three incidents would have even applied to the elder act. Now just waiting for her to use the judge’s advice so I can end up back in court with this woman and her next fictional accounting. I understand RO's serve a purpose but in the wrong hands they can really make someone’s life miserable. A real tool to get at someone. The courts don't have the time to hear the respondent and don't seem to care. Be prepared to spend a bunch of money or take your chances to do only one thing....make it harder for the petitioner to try to send you to jail. A RO can be a real tool for the vindictive.ReplyDelete
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