Legal Question in Family Law in California
restraining orders and divorce
I will first outline the situation and then address my question. My father is 86 and has severe alzheimers. He was living with his second wife who is 52 in dec 2006. His wife called the police and filed spousal abuse charges. Her 15 year old son had beaten my father advising he was restraining him. We have since filed conservertorship, and responded to his wifes legal separation with divorce proceedings. In the interim we have the criminal case and the restraining order that we are still trying to get removed. We were told that once we filed the divorce then they would remove the restraining order and drop the criminal charges, but not until we had a dual restraining order filed with the divorce. Please kep in mind that my father is in third stage alzheimers and does not know any of his children nor can he answer a direct question but yet we still cannot get any of this dropped.
QUESTION 1: Can you please advise what this dual restraining order is, how we go about filing, and what needs to be included.
QUESTION 2: What is required to file an elder abuse charge and when would be the appropriate time to file?
2 Answers from Attorneys
Re: restraining orders and divorce
In conjunction with the divorce, you will need to file a restraining order. In this situation, an Elder Abuse Restraining Order (as opposed to a regular Domestic Violence Restraining Order) is probably more appropriate.
Re: restraining orders and divorce
You would need to seek a restraining order, that way there would be 2 restraing orders in effect: 1. Wife against husband, 2. Husband against wife. The elder abuse case should be filed within two years of the last episode of abuse in order to meet important statute of limitations requirements, but the sooner you file, the better. The longer you wait, the fewer causes of action you may have and the fewer episodes of abuse you may be allowed to submit into evidence. It would be beneficial to the elder abuse case to have a restraining order in effect when you file. The elder abuse case filed concurently with the divorce case would be ideal. It would give you powerful negotiation leverage in the divorce case to get the lions' share of the assets. You could potentially wipe out the wife financially for the rest of her life. And since her torts involve intentional conduct, she cannot ever discharge any settlement or judgment in a bankruptcy--so long as the settlement or judgement says it is for specified intentional torts.
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