Choosing between an elder abuse vs domestic violence restraining order turns on the relationship. An elder abuse restraining order protects anyone 65 or older, or a dependent adult, regardless of their relationship to the abuser. A domestic violence restraining order requires a close family, marital or dating relationship.
Families usually discover that both might apply when an adult child is the person causing the harm. A son who has moved into his mother’s house qualifies on both sides, because he is a close relative and she is over 65. Picking the wrong petition can mean asking for relief the statute does not allow.
For the broader picture of how California treats harm to older adults, see our complete guide to elder abuse in California.
Who Each Restraining Order Protects
An elder abuse restraining order is defined by the protected person. Welfare and Institutions Code 15657.03 makes it available to a person 65 or older, or a dependent adult, with no requirement that the abuser be related to them at all.
A domestic violence restraining order works the opposite way. It is defined by the relationship between the two people, and the protected person’s age is irrelevant. A 40 year old and a 90 year old qualify on identical terms, provided the relationship is one the statute names.
Which Relationships Count as Domestic Violence in California
Family Code 6211 defines domestic violence as abuse against a spouse or former spouse, a cohabitant, a current or former dating partner, or a person with whom the respondent has had a child. It also reaches anyone related by consanguinity or affinity within the second degree.
Second degree is where families get caught. It reaches parents, children, stepchildren, siblings, stepsiblings, grandparents, grandchildren and in-laws, which covers most of the people who abuse an elderly relative, and the statute separately covers a child of a party. It stops short of aunts, uncles, nieces, nephews and cousins, who sit in the third degree.
For example, a nephew who has been draining his aunt’s savings cannot be the subject of a domestic violence restraining order on the strength of that relationship, because the relationship is too distant. An elder abuse restraining order remains available, because it asks only how old the aunt is.
Cohabitant is the term worth asking about where a caregiver lives in the home. Family Code 6209 states that a cohabitant means a person who regularly resides in the household, so whether a live-in caregiver falls inside the domestic violence route depends on the living arrangement and is worth putting to an attorney.
What Counts as Abuse Under Each Order
The elder abuse definition is wider on paper. Section 15610.07 covers physical abuse, neglect, abandonment, isolation and abduction, plus deprivation by a care custodian, plus financial abuse. Neither financial abuse nor neglect has a direct equivalent in the domestic violence definition.
Family Code 6203 defines abuse as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing someone in reasonable apprehension of imminent serious bodily injury, or engaging in behavior that could be enjoined under Family Code 6320. The statute also provides that abuse is not limited to the actual infliction of physical injury or assault.
That final route into the definition is doing most of the work, because section 6320 is broad. It reaches molesting, attacking, stalking, threatening, harassing, destroying personal property, contacting, coming within a specified distance, and disturbing the peace of the other party.
How Coercive Control Narrowed the Gap
Family Code 6320 now defines disturbing the peace to include conduct that destroys the mental or emotional calm of the other party. It names coercive control as an example, meaning a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will.
The examples the statute gives map closely onto elder abuse, and the test is the totality of the circumstances. They include isolating the other party from friends, family or other sources of support, depriving them of basic necessities, and controlling or monitoring their movements, communications, finances or access to services.
Therefore a domestic violence restraining order can now reach some conduct that older comparisons treat as available only through the elder abuse route. A daughter-in-law who has cut your mother off from the rest of the family and taken over her bank access may be describable in either petition.
The overlap is not complete. Coercive control requires a pattern of behavior, while a single wrongful taking can support a claim for financial elder abuse in California, and the elder abuse definition reaches negligent failures of care that no pattern of controlling conduct explains.
What Each Order Can Do That the Other Cannot
A domestic violence restraining order can reach into family relationships in ways the elder abuse route cannot. Family Code 6323 allows temporary orders for the custody and visitation of a minor child, including sole legal and physical custody and the terms of any exchange.
A grandparent raising a grandchild may therefore need both protection and a custody order from one proceeding. The domestic violence route also allows orders dealing with support and with control of property between the parties.
The elder abuse route carries a remedy aimed at money. After notice and a hearing the court can find that specific debts were incurred as a result of financial abuse, though that finding does not change the priority of any lien. It can also enjoin isolation, on findings about the elder’s wishes and capacity.
The isolation remedy is the one with no domestic violence equivalent. It is also the only route open to a family member who holds no conservatorship, no power of attorney and no court appointment, because the elder abuse statute lets an interested party petition for an isolation order alone.
Elder Abuse vs Domestic Violence Restraining Order: What Does Not Differ
Duration and cost are the same on both routes. Family Code 6345 allows a domestic violence order of up to five years after notice and a hearing, and the elder abuse statute allows the same. Neither route carries a filing fee at all.
Renewal works alike too. On both routes a renewal may be requested within the three months before the order expires, can run for another five years or be made permanent, and requires no showing of further abuse. Where the order form leaves out an expiration date, both statutes set the duration at three years.
Both routes also carry a firearm prohibition while the order is in effect. The elder abuse statute contains an exception the domestic violence statute has no equivalent for, because its firearm prohibition does not apply where the order rests solely on financial abuse, or solely on isolation without force or threats.
When Both Restraining Orders Are Available
Where the abuser is a spouse, a child, a grandchild, a sibling or an in-law of someone 65 or older, both routes are open. The statutes do not make them mutually exclusive, so the question becomes which petition gives the fuller relief for the facts you actually have.
Where money or property has been taken, the elder abuse route generally fits better, because it names financial abuse and allows the debt finding. Where a minor child, support or shared property is involved, the domestic violence route can resolve more in one proceeding.
Where the harm is that your parent has been cut off from the family, the elder abuse route is often the only one you personally can start. Our article on what to do when an adult child is stealing from an elderly parent covers the overlap case in more detail.
When Neither Order Fits and Civil Harassment Applies
A civil harassment restraining order is the residual route. Code of Civil Procedure 527.6 covers harassment by someone outside the domestic violence relationships, such as a neighbor, a roommate, an unrelated caregiver, or the aunts, uncles, nieces, nephews and cousins the second degree leaves out.
It carries a higher evidentiary bar. Harassment under section 527.6 means unlawful violence, a credible threat of violence, or a knowing and willful course of conduct that actually causes substantial emotional distress to the petitioner. A course of conduct means a pattern of acts over a period of time.
Renewal is more limited on this route as well. A civil harassment order may be renewed only once, for no more than five additional years, where the elder abuse and domestic violence routes allow a permanent order. The filing fee is also waived only where the petition alleges violence, threats, stalking or similar conduct placing the petitioner in reasonable fear of violence.
Section 527.6 also provides that it does not apply to any action or proceeding covered by Division 10 of the Family Code, which is the Domestic Violence Prevention Act. Therefore where the relationship brings the facts inside the domestic violence route, civil harassment is generally unavailable for the same conduct.
How to Decide Between an Elder Abuse vs Domestic Violence Restraining Order
Start with the relationship, because it decides what is available. Where the abuser is a spouse, partner, child, grandchild, sibling, in-law or cohabitant, both routes are open. Where the abuser is more distant than that and the protected person is 65 or older, the elder abuse route is the one that works.
Then look at what you need the order to do. A petition that has to address money, isolation or a care failure points toward the elder abuse route, while one that has to address a child, support or property between spouses points toward the domestic violence route.
Last, consider who is able to file. Where your parent can and will petition for themselves, both routes stay open. Where they cannot or will not, the elder abuse statute offers openings that the domestic violence statute does not, including petitions by a conservator, an attorney-in-fact, adult protective services, or an interested party seeking an isolation order.
The California Courts self-help guidance on restraining orders lists every type the state offers. Self-help centers assist with the forms but do not advise on which petition to bring.
When to Talk to an Attorney About Which Order to File
The petition you file shapes the relief you can ask for, so the choice is worth an early conversation. Bring the relationship, the dates, and whatever you can document about the conduct and the money.
Our elder abuse attorneys in Los Angeles and Orange County can tell you which order is available on your facts. Where the relationship brings the case inside the domestic violence route, our domestic violence restraining order attorneys handle that side of the work.
