Vinson v. Kinsey CA1/2 ( 2023 )

Filed 6/27/23 Vinson v. Kinsey CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ONIKA VINSON,
Plaintiff and Appellant,
A166582
v.
EDRIC KINSEY, (Alameda County
Super. Ct. No. HF22124020)
Defendant and
Respondent.
Onika Vinson appeals from the denial of her request for a domestic
violence restraining order (DVRO) under the Domestic Violence Protection
Act (DVPA) (Fam. Code, § 6200, et seq.1) against Edric Kinsey, her former
boyfriend and the father of two of her children. She contends the trial court
used an improper standard in evaluating whether threats Kinsey made
constituted abuse, failed to consider evidence of other forms of abuse and
failed to consider the totality of the circumstances as required by the DVPA.
She also argues the trial court erred in granting Kinsey unsupervised
visitation without complying with statutory requirements for the order. For
the reasons explained in this opinion, we will reverse the order denying the
Further statutory references will be to the Family Code unless
1
otherwise specified.
1
DVRO, conditionally reverse the visitation order and remand for further
reconsideration.2
BACKGROUND
On April 25, 2022, Vinson filed a request for a DVRO against Kinsey to
protect herself, the two children she shares with Kinsey (then 6 and 10 years
old) and her child from a different relationship (then 19 years old). Vinson
also sought orders for legal and physical custody of the two younger children,
with no visitation for Kinsey.
Vinson’s request listed “March of 2022” (March incident) as the date of
the most recent abuse. She stated that on that occasion, Kinsey asked her to
take him to the grocery store and while they were talking in the car, he
became “irate,” “began threatening to beat my face in” and “stated that he
would kill me.” Vinson also described an incident in June 2020, when Kinsey
took her phone out of her hand and, as she went to retrieve it, “he punched
me in my face and pushed me on the floor,” leaving her with a bruise on the
left side of her face and on her left arm. Vinson stated that Kinsey had
abused her “verbally, mentally, and physically for many years,” from
January 2010 to present; “continues to verbally abuse me”; “has threatened
to kill me on numerous occasions”; and “shows up at my house unannounced
any time he chooses”; that she was “in fear of my life because I don’t know
2 As Kinsey did not file a respondent’s brief, we decide this case on the
record on appeal and appellant’s opening brief and oral argument. (Cal.
Rules of Court, rule 8.220(a)(2).) (In re Marriage of D.S. and A.S. (2023)
87 Cal.App.5th 926, 930, fn. 3.)
We have also considered the views expressed in an amicus brief filed,
with our permission, by the University of California, Irvine School of Law,
Domestic Violence Clinic.
Further references to rules will be to the California Rules of Court.
2
when he will show up”; and that she did not have specific dates of abuse
because she could not remember them all. Vinson described the injuries she
had suffered as “[b]lack eyes, [b]ruises, [m]ental injuries.”
Vinson further stated that her children needed protection because
Kinsey “has a history of violence towards me,” “they are my children and they
live with me,” and her eldest son had “witnessed a lot of verbal abuse from
[Kinsey]” and “seen injuries caused to me after some of the physical
altercations.” Vinson stated that Kinsey has anger issues, she had tried
coparenting with him and “he never follows through,” and he “has threatened
to take the children from me every time he becomes angry with me.”
In support of her DVRO request, Vinson submitted signed “sworn
statement[s]” from relatives and a friend. Most of these statements related
having witnessed Kinsey verbally abusing Vinson and having seen Vinson’s
injuries; one witness observed Kinsey punching holes in Vinson’s wall and
breaking her furniture. The statements asserted that Kinsey had been
uninvolved in his children’s lives.3
3 Vinson’s mother told the court that Kinsey had punched holes in the
wall of Vinson’s home, hit her in the face and fractured her nose on Mother’s
Day in 2012, punched her in the face in January 2016, and “assaulted [her] in
her home” in 2020. She stated that Kinsey was arrested for the first three of
these incidents but not the fourth; that Kinsey had a history of “twisting the
truth” concerning Vinson and the children; that he had “never been an
involved parent,” and that she had “begged” Vinson “to not let this man come
around for fear he may one day follow through on his threats to kill her.”
Vinson’s best friend stated that Vinson told her numerous times of
ongoing verbal and physical abuse by Kinsey and told her that Kinsey had
“pretty much abandoned the children.”
A relative stated that she had witnessed Kinsey verbally abuse Vinson
and “the aftermath of the injuries of [Kinsey’s] assault on her”; that Kinsey
had been violent toward Vinson for as long as the witness had known him
3
Vinson also submitted numerous texts from Kinsey to document
threats to hurt or kill her. For example, Kinsey’s texts included, “I know
what it is u dint want me to find out who it is bcuz when i do that will be your
last breath on this earth”; “No u dont u no nothing of me u assume so much it
makes me wanna slap u”; “Ima kill u before this world ends mark my words
dont matter how its done you will feel every inch of pain u cause me”; “Na im
4real ur dead to me bare hands an all”; “Should’ve snapped your neck . . .”;
“Just know at this point in life i will kill u and any nigga that stops me from
being a dad to my kids period . . . Im not taking NO or leave for a answer im
coming for what I created”; “Na how bout ima beat yo ass for lying to me.”
After texts from Vinson referring to Kinsey having hit her in the mouth while
she was driving, punched her in the side of her head “over a broad” when
they were “sitting at Alex school,” and “fractured [her] nose on Mother’s Day,”
Kinsey responded, “No i hit you bcuz u keep talkin sht like u know
and has “severe anger issues”; and that Kinsey “does not provide any
emotional support and very little financial support of their children.”
Vinson’s nephew stated that he saw holes Kinsey punched in Vinson’s
wall and “witnessed many verbal attacks against [Vinson] as well as seeing
injuries from [Kinsey’s] physical attacks”; that when confronted about the
abuse, Kinsey “portrays himself as the victim”; and that “[f]rom what I know
he has never been a father to” the children.
Vinson’s niece stated she had seen “the numerous injuries [Kinsey] has
caused” to Vinson; Kinsey has never “been a father” to the children and was
“known for defaming [Vinson] on social media saying that she won’t allow
him to see the children”; and “[t]he amount of emotional and physical pain he
has inflicted on [Vinson] should not happen to any woman.”
Another niece stated she had “witnessed on numerous occasions violent
outburst[s]” from Kinsey toward Vinson, “witnessed [Kinsey] destroy her
property by punching holes in her walls and break some of her furniture,”
“witnessed him verbally attack her” and “seen the injuries on her from his
physical attacks”; and that Kinsey had “never been an active parent” to his
children.
4
everything i do and when im speaking what really happen stop over talking
me with bitch BS.”
The trial court issued a temporary restraining order and child custody
order pending a hearing set for May 12, 2022.
The parties appeared in propria persona at the hearing, which was held
remotely. The court first questioned Vinson about the March incident
described in her application, when she and Kinsey were going to a grocery
store. Vinson explained that Kinsey would share his monthly food stamps
with her “for the kids to give the kids food” and she would take him to the
grocery store because he did not have a vehicle. She testified that while the
two of them were sitting in the car in front of his house before going to the
grocery store, Kinsey got mad and threatened to “beat [her] face in” and to
kill her, as he had on other occasions. The court asked why, if he had
threatened her numerous times, she would “even go around him” and be
alone in a car with him, and she explained, “he plays on my sympathy. And
he'll start crying. And I have—and I have a soft heart. I mean, you know.
And we do have children together. I mean, that’s my stupidity.”
Vinson did not remember the date of the incident but testified it was at
the beginning of March, and the court asked why she waited until April 25 to
file her request for a restraining order. Vinson responded that Kinsey
treated her and the children to an outing he had planned for their daughter’s
March 30 birthday but afterward they got into a verbal altercation. The
court interjected, “[l]et me make sure I understand this . . . [¶] He threatened
to kill you . . . [¶] multiple times . . . [¶] but you let him in your car in early
March? . . . [¶] And you said for the sake of the children, but no children were
present. [¶] And then because it was your daughter’s birthday at the end of
March and he made plans that you wanted to benefit from, either you or your
5
child or both, that you decided to wait to file a request for a restraining order
until April; is that correct?” Vinson responded, “No. No. No. [¶] He and I
had got into it again afterwards. The threats come in—I have this
documented, the threats coming in of killing me. And then he—he was
supposed to do something for his children, which he did not because his—as
always, he’s never consistent with his kids. He’s never around them. His
friends is priority over his children.” The court asked if she was saying
Kinsey had not taken the children for the outing as planned and Vinson said,
“No. We went together—he doesn’t do anything with them. I’m the sole
caretaker and provider. He’s never done anything outside of me with his
children. Nothing.”
At this point, the court asked Kinsey for his response to the allegations
that he threatened to kill Vinson and “beat her face in.” Kinsey testified,
“during the time of that threat, I can recall that. . . . I was dealing with
something very personal within myself, and at the time me and [Vinson] have
moments where—or pocket moments where me and her, we kindle each
other’s time. . . . [¶] I did not threaten to beat her face in. I said—I
specifically told her—I said— this is the type of stuff that will make me react
this way, but I’m not directly telling you that I'm going to do this to you.”
The court asked if he threatened to kill her and Kinsey replied, “No. I have
not threatened to kill her multiple times. [¶] I said that when the death of my
mother came and she abandoned me. . . . [T]hese allegations about me
threatening her all come from after my mom died. [¶] My mom died four or
five years ago. . . . [¶] The only time . . . she utilizes this to explain it to me is
when she has another relationship. She utilizes the fact that I’m cheating on
her. I don’t understand how I’m cheating on her if we’re not together. I don’t
understand how I’m a deadbeat when I’ve been trying to reach out to her to
6
spend time. I can’t help it that I go out here to bust my back to get a job
that’s not going to pay me enough money to provide for my kids.”
Regarding the March incident, which Kinsey said was on March 7,
Kinsey testified, “We get in front of the grocery store. After we leave my
house, we get in front of the grocery store. We have positive talks. We’re
laughing. Everything is going good. [¶] I reach out to her about wanting my
family back. I reach out to her about me wanting to do more and trying to do
more by supporting. She told me that she don’t love me no more. She don’t
care about me no more. That— that—that technically me expressing myself
never matters to her. [¶] So right now she’s moved on. She don’t care about
what I have going on. If I’m struggling, so—well, so be it. I’m just going to
take the kids and leave.” The court asked how this made Kinsey feel and
Kinsey replied, “It hurt. It hurts. It will make me upset. It breaks my
heart.”
When the court asked if they had an argument, Kinsey testified, “Yeah.
We had the argument about the—it’s the lies of you telling me one moment
we're going to do this together. And I work myself up or go get a job or
arrange my time to want to do these things. Then when I actually have the
free time on the days off, when I call you, first thing comes out of your mouth
is ‘I’m busy.’ Or your daughter's asleep or your son is doing this. [¶] I can’t—
now I can’t see them? So I can’t come—I can’t come and just spend time with
one of them? [¶] It’s like I have to go through these arguments and debates
with her about my time—my job. [¶] Like right now I worked. I had to take
today off because of the hearing, which also affects the fact that I got child
support later for $800. I don’t even make that on my checks. I get paid $17
an hour.” Kinsey told the court he almost lost his job when Vinson sent the
temporary restraining order to his workplace.
7
The court asked for any response from Vinson, who said that Kinsey
was “telling a blatant lie.” Vinson stated, “I submitted evidence of him
threatening to kill me,” and said Kinsey had “begged [her] to be back with
him” but she was “not getting back with an abuser.” After some cross talk,
the court said it had heard enough, asked if the case was submitted and
issued its ruling as follows:
“The request for a restraining order was filed in March—was filed on
April 25th, 2022, for an incident that occurred in early March, possibly
March 7th, 2022. [¶] The Court doesn’t understand why there was a delay in
requesting the restraining order, but perhaps it’s because despite the fact
that Ms. Vinson repeats that she’s been repeatedly threatened by Mr. Kinsey,
she repeatedly goes back and has contact with Mr. Kinsey. So it’s clear to the
Court that she’s not particularly concerned about his comment that he will
kill her. [¶] I don’t know if that’s a colloquialism. I don’t know if that’s just a
phrase, but it has no meaning. So she’s asking the Court to interpret the
meaning of that as being an attempt to engage in a violent act or the threat of
violence. But at the same time she doesn’t act like it’s a threat of violence.
And for those reasons as well as issues of credibility, the Court denies the
request for the restraining order.” The court stated that the parties needed
visitation orders, referred them to Family Court Services and continued the
matter.
The Family Court Services report made three recommendations: First,
that the children continue to reside primarily with Vinson; second, that
Kinsey have professionally supervised visits for up to two hours every other
weekend and, after completing four such visits without incident, progress to
unsupervised visits for two hours every other weekend with supervised
exchanges; and, third, that the parties participate in individual therapy to
8
“work on emotional growth and healing in an effort to develop a healthy and
effective coparenting relationship.” The court read each recommendation to
the parties and asked for any objection to each one; neither party objected,
and the court adopted the recommendations as its order.
The court filed its Findings and Orders After Hearing on
May 18, 2022.4
Vinson filed a timely notice of appeal on November 7, 2022.5
DISCUSSION
I.
The Order Denying a Restraining Order Must Be Reconsidered.
A. General Principles
“Under the DVPA, a court may issue a protective order ‘ “to restrain
any person for the purpose of preventing a recurrence of domestic violence
and ensuring a period of separation of the persons involved” upon “reasonable
proof of a past act or acts of abuse.” ’ (Nevarez v. Tonna (2014)
227 Cal.App.4th 774, 782.) The statute should ‘be broadly construed in order
to accomplish [its] purpose’ of preventing acts of domestic violence. (In re
Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.)” (In re Marriage
of F.M. & M.M. (2021) 65 Cal.App.5th 106, 115 (F.M.).) “We review the trial
court’s grant or denial of a DVPA restraining order request for an abuse of
discretion.” (Ibid.)
4 The court had filed Findings and Orders After Hearing on
May 17, 2022, that appear to be identical to those filed the next day except
that one page was missing.
5 The notice of appeal states that the appeal is from the court’s May 12
and May 18, 2022 orders. Appellate counsel represents that neither the trial
court clerk nor any party served notice of entry of the court’s order. The
notice of appeal was filed within 180 days of the filing of the court’s order.
(Rule 8.104(a)(1)(C).)
9
As relevant in this case, the DVPA defines “ ‘[d]omestic violence’ ” as
“abuse perpetrated against” a person “with whom the respondent is having or
has had a dating or engagement relationship,” a person “with whom the
respondent has had a child,” or “[a] child of a party.” (§ 6211, subds. (c), (d),
(e).) “ ‘Abuse’ includes intentionally or recklessly causing or attempting to
cause bodily injury, placing a person in reasonable apprehension of imminent
serious bodily injury, or engaging in behavior that could be enjoined under
section 6320. (§ 6203.)” (F.M., supra, 65 Cal.App.5th at p. 115.) Conduct
that may be enjoined under section 6320 includes “molesting, attacking,
striking, stalking, threatening, sexually assaulting, battering, . . . harassing,
telephoning . . . destroying personal property, contacting, either directly or
indirectly, by mail or otherwise, coming within a specified distance of, or
disturbing the peace of the other party . . . .” (§ 6320, subd. (a).)
B. Analysis
As described above, the trial court denied Vinson’s request for a
restraining order because it concluded that the fact she continued to have
contact with Kinsey meant she was “not particularly concerned” about his
“comment that he will kill her,” which comment the court stated, “has no
meaning.” Vinson contends the court improperly heightened her burden of
proof by requiring her to prove that Kinsey threatened her with violence and
caused her to fear for her safety when the DVPA requires only proof that he
threatened her. She also contends the court erred by failing to consider other
types of abuse shown in the record and narrowly focusing on the timing of the
application, her continued contact with Kinsey and unspecified credibility
concerns without considering the totality of the circumstances.
“Threatening” the other party comes within the statutory definition of
“abuse” through the incorporation of “behavior that has been or could be
10
enjoined pursuant to section 6320” described in section 6203,
subdivision (a)(4). “Threatening” is listed in section 6320 without
qualification by the type of threat or effect of the threat on the person
threatened. By contrast, section 6203, subdivision (a)(3), separately defines
“abuse” as including “plac[ing] a person in reasonable apprehension of
imminent serious bodily injury to that person or to another.” As Vinson
points out, if the only threats constituting abuse are threats of violence that
cause the recipient reasonable fear of serious bodily injury, threatening
conduct could be the basis of a restraining order under section 6203,
subdivision (a)(4), only if it was also abuse under section 6203,
subdivision (a)(3)—rendering subdivision (a)(4) meaningless as to this form of
conduct.
Moreover, threats that do not directly refer to physical violence or
cause reasonable fear of bodily harm may still constitute harassment or
disturbing the peace of the recipient, which are separately enjoinable under
section 6320 and therefore forms of abuse under section 6203,
subdivision (a)(4). The DVPA clearly protects against more than just
physical violence and threats thereof. (E.g., In re Marriage of Nadkarni,
supra, 173 Cal.App.4th at p. 1498 [disturbing peace by “destroying the
mental or emotional calm” of other party is abuse under DVPA]; Burquet v.
Brumbaugh (2014) 223 Cal.App.4th 1140, 1144-1147 [repeatedly calling,
emailing, texting and coming unannounced to home of former girlfriend and
refusing to leave constituted disturbance of her peace and abuse under
DVPA].) Here, the trial court appears to have taken the view that Vinson
was not entitled to a DVRO unless Kinsey caused her to fear bodily injury.
This is too limited a view of the conduct covered by the DVPA.
11
Other aspects of the trial court’s ruling are also troubling. Focusing
primarily on the March incident, the court rejected Vinson’s testimony that
she believed Kinsey when he said he was going to kill her. The court did not
explain its concerns with “issues of credibility,” but it is evident from the trial
court’s questions and remarks that it saw Vinson’s choice to maintain contact
with Kinsey, and particularly to be in a car alone with him, as undermining
her credibility. The court’s conclusions that Kinsey’s threat to kill Vinson
“has no meaning” and Vinson “doesn’t act like it’s a threat of violence”
effectively imposed on Vinson a singular vision of how an abused woman
should act. But “ ‘[a]ll women exposed to violence and abuse in their intimate
relationships do not respond similarly, contradicting the mistaken
assumption that there exists a singular “battered woman profile.” Like other
trauma victims, battered women differ in the type and severity of their
psychological reactions to violence and abuse, as well as in their strategies for
responding to violence and abuse.’ ” (In re I.B. (2020) 53 Cal.App.5th 133,
155, quoting Dutton, Understanding Women’s Responses to Domestic
Violence: A Redefinition of Battered Woman Syndrome (1993) 21 Hofstra
L.Rev. 1191, 1225.)
Of course, “[c]redibility determinations . . . are subject to “extremely
deferential review” (Jennifer K. v. Shane K. (2020) 47 Cal.App.5th 558, 579),
and “ ‘[a] trier of fact is free to disbelieve a witness . . . if there is any rational
ground for doing so.’ (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.)”
(F.M., supra, 65 Cal.App.5th at p. 119.) But the court here adopted too
cramped a view of how battered women should react to threats and abuse in
rejecting Vinson’s testimony that she believed Kinsey’s threats and feared he
would kill her. When the trial court asked Vinson why she would be alone
with Kinsey in her car if he had threatened her numerous times, Vinson
12
explained that he “plays on my sympathy” and “we do have children
together.” The court later commented, “you let him in your car in early
March . . . [a]nd you said for the sake of the children, but no children were
present.” This comment reflects a basic misunderstanding of Vinson’s
explanation, as the children’s presence or absence on a single occasion is
irrelevant to Vinson’s point—that because she and Kinsey had two children
in common, there was reason for her to be in contact with him, whether in
general or, as on the occasion in March, to facilitate the specific goal of
obtaining food with Kinsey’s food stamps.
The court also indicated that it questioned Vinson’s credibility due to
her failure to file the request for a restraining order until approximately
seven weeks after the March incident. The court initially took Vinson’s
explanation as indicating she intentionally delayed filing her request because
she wanted the benefit of the plans Kinsey had made for their daughter’s
birthday (“because it was your daughter’s birthday at the end of March and
he made plans that you wanted to benefit from, either you or your child or
both, that you decided to wait to file a request for a restraining order until
April”). Vinson said this was not what happened and explained that she and
Kinsey “got into it again” after the birthday outing, referring to “threats
coming in of killing me” and Kinsey not doing something he was supposed to
do for the children. In its ruling, the court said it “doesn’t understand why
there was a delay in requesting the restraining order” and “perhaps” it was
because Vinson was not really concerned about Kinsey’s “comment that he
will kill her.”
The court was entitled to consider the timing of the restraining order
request as part of the totality of the circumstances. But “[t]he length of time
since the most recent act of abuse is not, by itself, determinative.” (§ 6301,
13
subd. (c).) Vinson’s explanation suggests she decided to file her restraining
order request after an additional altercation subsequent to the
March incident, not that she decided to seek a restraining order after the
March incident and intentionally delayed doing so (although she was not
asked to, and did not, explain why her request listed the March incident as
the most recent abuse). More importantly, the trial court’s focus on the time
between the March incident and filing of the restraining order request
ignores the parties’ overall history over the course of a decade-long
relationship and the recognized difficulty of leaving an abusive relationship.6
(See In re I.B., supra, 53 Cal.App.5th at p. 156.)
The hearing in the present case was brief, and the court’s inquiry of the
parties focused on the March incident and Vinson’s general allegations that
Kinsey had threatened to kill her numerous times in the past. The court did
not address Vinson’s statements in her restraining order request that Kinsey
punched her in the face and pushed her to the floor in June 2020, abused her
“verbally, mentally, and physically for many years,” and “shows up at my
house unannounced any time he chooses,” leaving her being “in fear of my life
because I don’t know when he will show up.”
Nor did the court address the contents of the texts Vinson submitted.
As described above, Kinsey’s texts document repeated threats to hurt or kill
Vinson, expressions of regret at not having hurt her in the past, and an
admission that he hit Vinson on one occasion. The texts also reflect Kinsey’s
6 “ ‘[L]eaving an abusive relationship or ending violence is a complex
process.’ ” (I.B., supra, 53 Cal.App.5th at p. 156, quoting Transforming
Domestic Violence Representation (2013) 101 Ky. L.J. 483, 525.) “ ‘Studies
have found that many abuse survivors attempt to leave a violent relationship
five to seven times before they are able to fully do so.’ ” (I.B., at p. 156,
quoting Transforming Domestic Violence Representation, at p. 523.)
14
refusal to accept the end of his relationship with Vinson, anger over her being
in another relationship and threats to hurt himself if she did not give him the
time he felt he deserved. For example, Kinsey texted, “No im not leaving sht
alone fuck u thought nobody has ur time but me who da fuck unthink u are to
give my pussy away my time my attention I ask for away . . . [¶] No im not
leaving u alone until u bring yo ass to my house an in my fuckin bed and take
this dick and ima get u pregnant again on my momma so u think im joking
about you ur mines period til i die.” Kinsey texted, “im so scared of u leaving
i wanna kill myself for it happening bcuz what will i have to live then . . . [¶]
Ill hurt myself for losing everuthing i worked so hard fornmy dream was to
have kids and a family a wife and none of that is happening.” Vinson’s
relatives’ statements say they witnessed Kinsey verbally abusing Vinson, saw
injuries resulting from his assaults (including, according to Vinson’s mother
and one of Vinson’s texts to Kinsey, a fractured nose), and saw holes Kinsey
punched in Vinson’s wall. One of Vinson’s relatives stated that she witnessed
Kinsey punching the holes and breaking some of Vinson’s furniture.
If admissible7 and credited, this information would establish abuse
within the meaning of the DVPA beyond threats—actual infliction of bodily
7 A DVPA restraining order may be based upon “an affidavit or
testimony.” (§ 6300, subd. (a).) The witness statements Vinson submitted
are in the form of letters to the court (“Dear Judge”), titled “Sworn
statement” and signed after the declaration, “[t]his is my sworn statement
and this statement is true as to what I have witnessed,” or a substantively
similar one. It appears Vinson, who was not represented by counsel, made
some effort to present evidence in a legally acceptable form, and the record
does not indicate Kinsey objected to the statements or the trial court found
them inadmissible. (Rule 5.111(c) [absent timely objection that a declaration
does not meet content requirements, “any objection will be considered waived,
and the declaration may be considered as evidence”; if no ruling, objection
presumed overruled].)
15
harm, destruction of property, and potentially harassment and disturbing the
peace. As far as the record discloses, however, the trial court neither
acknowledged nor evaluated any of this information. By focusing on the
March incident without consideration of the history of physical abuse, verbal
abuse and destruction of property that Vinson attempted to put in evidence,
it is difficult to see how the trial court could have satisfied the statutory
requirement that it consider “the totality of the circumstances in determining
whether to grant or deny a petition for relief.” (§ 6301, subd. (c).)
While we review the trial court’s denial of Vinson’s request for a
restraining order for abuse of discretion, “ ‘[j]udicial discretion to grant or
deny an application for a protective order is not unfettered. The scope of
discretion always resides in the particular law being applied by the court, i.e.,
in the “ ‘legal principles governing the subject of [the] action . . . .’ ” ’
(Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337.) Thus, ‘we consider
whether the trial court’s exercise of discretion is consistent with the statute’s
intended purpose.’ (People v. Rodriguez (2016) 1 Cal.5th 676, 685.) ‘ “If the
court’s decision is influenced by an erroneous understanding of applicable law
or reflects an unawareness of the full scope of its discretion, the court has not
If the statements did not meet the requirements for an affidavit or
declaration (e.g., based on personal knowledge (rule 5.111(b)(2)), statements
admissible in evidence (ibid.), statement of date and place of execution (Civ.
Proc., § 2015.5), declaration of truth under penalty of perjury (ibid.)), the
court could and should have offered Vinson some guidance as to how
deficiencies could be corrected. (Gonzalez v. Munoz (2007) 156 Cal.App.4th
413, 423 [“in administering the DVPA . . . , in light of the vulnerability of the
targeted population (largely unrepresented women and their minor children),
bench officers are ‘necessarily expected to play a far more active role in
developing the facts, before then making the decision whether or not to issue
the requested permanent protective order.’ (Ross [v. Figueroa (2006)]
139 Cal.App.4th [856,] 861”].)
16
properly exercised its discretion under the law. [Citation.] Therefore, a
discretionary order based on an application of improper criteria or incorrect
legal assumptions is not an exercise of informed discretion and is subject to
reversal. [Citation.]” [Citation.] The question of whether a trial court
applied the correct legal standard to an issue in exercising its discretion is a
question of law [citation] requiring de novo review [citation].’ (Eneaji v.
Ubboe (2014) 229 Cal.App.4th 1457, 1463.)” (F.M., supra, 65 Cal.App.5th at
pp. 115-116.)
Here, the trial court focused narrowly on the March incident, indicated
the threat Vinson described did not warrant a protective order because the
court did not believe Vinson took this threat seriously, and gave no indication
it considered the evidence Vinson submitted of additional threats and
repeated verbal and physical abuse. We are compelled to conclude the court
abused its discretion by denying the request for a DVPA restraining order
without consideration of the totality of the circumstances. This is not to say
the court was required to believe any or everything Vinson or any other
witness said; the evidence was not undisputed, and we cannot say Vinson
was entitled to the order she sought as a matter of law. (N.T. v. H.T. (2019)
34 Cal.App.5th 595, 603 [appellate court unable to find DVRO required as
matter of law where trial court did not make findings on disputed evidence].)
But the DVPA’s broad protective purpose and definition of abuse demands,
and Vinson was entitled to, full consideration of her case. Accordingly, we
reverse the order denying Vinson’s request for a DVPA restraining order and
remand for reconsideration of her request if she chooses to pursue it under
presently existing circumstances.
17
II.
Vinson contends the visitation order must be reversed due to the trial
court’s failure to comply with two statutory requirements for an order
granting unsupervised visitation to a parent who has been alleged to have a
history of abuse against the other parent. The first requirement is that the
court must state its reasons for granting unsupervised visitation; the second
is that the court specify the time, day, place and manner of transfer of the
children for unsupervised visits. (§§ 3011, subd. (a)(5)(A); 6323, subd. (c).)
Section 3011, subdivision (a)(5)(A), provides: “When allegations about
a parent pursuant to paragraph (2) or (4) have been brought to the attention
of the court in the current proceeding, and the court makes an order for sole
or joint custody or unsupervised visitation to that parent, the court shall
state its reasons in writing or on the record. In these circumstances, the
court shall ensure that any order regarding custody or visitation is specific as
to time, day, place, and manner of transfer of the child as set forth in
subdivision (c) of Section 6323.”8
As relevant here, paragraph (2) of section 3011, subdivision (a), refers
to “[a] history of abuse by one parent . . . against . . . [t]he other parent.”
(§ 3011, subd. (a)(2)(ii).) Section 6323, subdivision (c), provides that “[w]hen
making an order for custody or visitation pursuant to this section, the court’s
order shall specify the time, day, place, and manner of transfer of the child
for custody or visitation to limit the child’s exposure to potential domestic
conflict or violence and to ensure the safety of all family members.”
8 These requirements became applicable to orders for unsupervised
visitation on January 1, 2022; previously, they had applied only to orders for
sole or joint custody. (Stats. 2021, ch. 768, § 1.)
18
The visitation order reads as follows: “The father shall have the
following parenting times: [¶] a. Professionally supervised visits for up 2-
hours every other weekend. [¶] b. After completing four professionally
supervised visits without incident, the father’s parenting time shall progress
to unsupervised for 2-hours every other weekend with supervised exchanges.”
Neither the written order nor the court’s ruling on the record includes
reasons for the visitation order or the details regarding transfers of the
children required by section 6323, subdivision (c).
As Vinson points out, section 3011, subdivision (a)(5)(A), requires a
statement of reasons when unsupervised visitation (or custody) is granted to
a parent about whom “allegations” of abuse “have been brought to the
attention of the court,” as they were here. The visitation order thus does not
satisfy the requirements of section 3011, subdivision (a)(5)(A).
Subdivision (a)(5)(B) of the statute, however, provides that “[t]his paragraph
does not apply if the parties stipulate in writing or on the record regarding
custody or visitation.” As earlier indicated, at the hearing the court read
each of the visitation recommendations in the Family Court Services report
to the parties. After reading each recommendation, the court asked if there
were any objections, both parties responded “no,” and the court then adopted
that recommendation as its order. The parties’ on-the-record acceptance of
the visitation recommendations without objection is, in effect, a stipulation to
the terms of the visitation order. This substantial, if not actual, compliance
with section 3011, subdivision (a)(5)(B), made it unnecessary for the court to
provide the statement of reasons otherwise required by subdivision (a)(5)(A).9
9 The fact that the trial court did not find Kinsey committed the abuse
Vinson alleged distinguishes the two cases Vinson cites in support of her
assertion that the court’s failure to comply with section 3011,
19
Nevertheless, our reversal and remand for reconsideration of the order
denying Vinson’s request for a restraining order makes it appropriate to
conditionally reverse the visitation order as well, as error in the court’s
evaluation of Vinson’s claim of abuse could undermine its determination of
reasonable visitation. In this regard, the current orders reflect some
inconsistency in that while denial of Vinson’s restraining order request
indicates the court did not see Kinsey as a safety risk, the requirement that
he have four supervised visits before “progress[ing]” to unsupervised visits
suggests the court did have at least some safety concerns. (See Cueto v.
subdivision (a)(5)(A), requires reversal of the visitation order. In both cases,
joint custody was awarded to a father whom the court found to have
committed domestic violence against the mother (Jaime G. v. H.L. (2018)
25 Cal.App.5th 794, 796 (Jamie G.); Abdelqader v. Abraham (2022)
76 Cal.App.5th 186, 189, 194 (Abdelqader)), triggering the statutory
presumption that “an award of sole or joint physical or legal custody of a child
to a person who has perpetrated domestic violence is detrimental to the best
interest of the child” (§ 3044, subd. (a)). The section 3044 presumption is
rebuttable, but a court that finds it rebutted is required to state its reasons,
which must address all the factors set forth in section 3044, subdivision (b).
(Jaime G., at p. 805; Abdelqader, at p. 196.) Jaime G. and Abdelqader found
reversible error because the trial court failed to sufficiently state its reasons
for finding the section 3044 presumption rebutted. (Jaime G., at p. 809;
Abdelqader, at pp. 198-199.)
Where, as here, the trial court does not sustain domestic violence
allegations, the section 3044 presumption is not triggered; the need for a
statement of reasons discussed in Jaime G. and Abdelqader is absent because
there is no presumption to rebut. Although section 3011,
subdivision (a)(5)(A), requires a statement of reasons when unsupervised
visitation (or custody) is granted to a parent alleged to have committed abuse,
it does not necessarily follow that prejudicial error results when a trial court
fails to state its reasons for granting such a parent unsupervised visitation or
to specify details to limit the child’s exposure to potential domestic violence
and ensure family members’ safety (§ 6323, subd. (c).) It is reasonable to
infer that when a trial court denies a DVRO, it does not view the alleged
abuser as posing a safety risk.
20
Dozier (2015) 241 Cal.App.4th 550, 562 [trial court denied mother’s
application to renew protective order, but its subsequent comments to father
that it would consider another protective order if he contacted mother
suggested mother had demonstrated reasonable apprehension of future
abuse].)10 If the trial court issues a restraining order, it will necessarily have
to reconsider the visitation order.
If the trial court on remand again denies the restraining order request,
it may reinstate the present visitation order or may enter a new or modified
order consistent with the evidence presented on remand and the views
expressed in this opinion.
DISPOSITION
The order denying the request for a restraining order is reversed and
the matter is remanded to the trial court for reconsideration of the DVRO
request if Vinson chooses to pursue it.
The visitation order is conditionally reversed. The visitation order
shall be reconsidered in light of any further proceedings on the restraining
order request. If the restraining order request is denied, the present
visitation order may be reinstated, modified or replaced.
10 The visitation order also fails to explain what would constitute an
“incident” for purposes of the condition that unsupervised visitation occur
only after four supervised visits “without incident.”
21
STEWART, P.J.
We concur.
RICHMAN, J.
MARKMAN, J. *
Vinson v. Kinsey (A166582)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
22