Patrick Karlowski v. Elizabeth Karlowski

2026 Ark. App. 178

• Court: Court of Appeals of Arkansas
• Decided: March 11, 2026
• Status: Published

Opinion

Cite as 2026 Ark. App. 178 ARKANSAS COURT OF APPEALS DIVISION I No. CV-24-817

Opinion Delivered March 11, 2026 PATRICK KARLOWSKI APPEAL FROM THE WASHINGTON APPELLANT COUNTY CIRCUIT COURT [NO. 72DR-23-1664] V. HONORABLE STACEY ZIMMERMAN, ELIZABETH KARLOWSKI JUDGE

APPELLEE AFFIRMED IN PART; REVERSED AND REMANDED IN PART

KENNETH S. HIXSON, Judge

Appellant Patrick Karlowski appeals the Washington County Circuit Court’s order

granting a covenant marriage judicial separation, awarding appellee Elizabeth Karlowski

primary custody of the parties’ minor child (MC), and setting visitation. On appeal, Patrick

argues that (1) the order for primary custody was clearly erroneous; (2) the restrictions on

visitation were clearly erroneous; and (3) the one-sided no-contact order was clearly

erroneous. We affirm in part and reverse and remand in part.

I. Relevant Facts

The parties were married into a covenant marriage pursuant to Arkansas Code

Annotated section 9-11-803 (Repl. 2020) on June 14, 2014. On October 31, 2023, Elizabeth

filed her complaint for judicial separation in a covenant marriage pursuant to Arkansas Code

Annotated section 9-11-808 (Repl. 2020), generally alleging that Patrick had committed such general indignities against her as to render her condition intolerable. She alleged that Patrick

had unilaterally decided, contrary to her wishes, to separate and was in the process of moving

out. Elizabeth asked that she be granted a covenant marriage judicial separation from

Patrick; that she be granted primary legal and physical custody of their adopted child, MC,

subject to Patrick’s reasonable rights of visitation; that Patrick be required to pay child

support and spousal support; that the court divide possession of marital property and assign

responsibility for marital debts during the separation; that she be granted possession of the

parties’ marital home; and that Patrick be enjoined from removing her from his employer-

provided health insurance. Patrick filed his answer generally denying the allegations and

asked that the parties be awarded joint custody of MC and for his attorney’s fees and costs.

A temporary hearing on child custody, visitation, and child support was held on

December 15, 2023. Elizabeth testified that Patrick desired a separation against her wishes

and moved out of the marital home on November 4, 2023. She said that Patrick resented

her because she could not bear children. MC began living with the parties on December 21,

2022, and the parties subsequently adopted MC after MC’s biological parents’ parental

rights were terminated. When MC first moved into the home, Elizabeth took care of MC

Monday through Friday during the day. Patrick would assist with the nighttime routine, and

the parties would share responsibility on the weekends. Once MC began preschool on

Tuesdays and Thursdays, MC would stay with family during the day on Mondays and

Wednesdays. Elizabeth still took care of MC during the day on Fridays.

2 Elizabeth acknowledged that Patrick was a “good dad,” but she asked that she be

awarded primary custody of MC. She testified that after Patrick moved out of the marital

home, he created a weekly custody schedule in which MC would change custody every few

days to give each party roughly equal time. Elizabeth voiced that she did not think the

schedule was in MC’s best interest, but she nevertheless accepted the schedule Patrick

devised. Elizabeth explained that as a result of the joint-custody schedule, MC had regressed.

He reverted to using “baby talk,” threw increasingly more tantrums, started chewing his

fingers, became aggressive with other children, and had increased confusion (calling every

adult female “mom”). Moreover, MC had been experiencing severe separation anxiety

whenever Elizabeth was away from him. Elizabeth explained,

His separation anxiety is something that we’ve never had to deal with before. And he -- all the time now, if I turn my back to walk down the hallway, he will lay on the floor and cry and ask where I’m going. Um, he gets very upset if he can’t see me and I haven’t told him what I’m doing. That was something that he has not experienced -- we’ve not experienced with him before. Even putting him to bed at night and walking out of the room he screams and cries for me to come back in, to sit by him. He -- dropping him off at school has gotten difficult. His teachers have to take him out of my arms, and, even then, it’s -- he takes a few moments before he’s okay. Um, but his separation anxiety has gotten pretty bad.

Elizabeth said the behavioral changes occurred after Patrick moved out and the parties

started the joint-custody arrangement. Therefore, she thought it was in MC’s best interest

for her to have primary custody.

I believe that [MC] needs the stability of his home, of his bed at night, of the people that have been around him for the past year. I believe that switching back and forth for him is incredibly difficult and it is having negative effects on him emotionally. And I believe that one steady location for him is the most beneficial thing that can happen for him.

3 During the marriage, Elizabeth and Patrick and Patrick’s parents lived in two separate

residences located on the same parcel of land. Although Patrick’s parents were previously

able to help take care of MC, they could no longer do so due to their health issues. Patrick

subsequently moved from Springdale, Arkansas, to Pea Ridge, Arkansas, where Brittany Bray

(Patrick’s alleged girlfriend) lived in the same neighborhood. Elizabeth explained that

Patrick admitted to her that he had an “emotional affair” with Ms. Bray. Elizabeth asked

that there be no contact between Ms. Bray and MC. She also asked that the court grant her

exclusive possession of the marital home and order Patrick to return the gate opener to their

automatic gate and to turn over administrative rights to their security cameras on the

property. She explained that Patrick had been unwilling to do so after she asked.

Of importance, certified copies of relevant orders from MC’s dependency-neglect case

and adoption case were admitted into evidence without objection for the court to consider

in determining MC’s best interest.

Patrick testified that before moving out of the marital home, the parties shared the

responsibility of caring for MC. He stated that he would attend doctor appointments if his

schedule allowed. Patrick testified that since the parties’ separation, he takes care of MC

with the assistance of his parents. Other than MC using some baby talk, Patrick denied

seeing any of the other behavioral changes Elizabeth mentioned. Patrick admitted that he

made the joint-custody schedule and described the schedule to the court that rotated around

4 his work trips. Upon further inquiry, he admitted that the schedule was confusing and

requested that the court award him joint custody of MC on an every-other-week basis.

The circuit court filed a temporary order on January 2, 2024. In that order, the circuit

court made the following relevant findings:

5. [Elizabeth] has shown by clear and convincing evidence that joint custody is not in the best interest of the parties’ minor child. Therefore, while this case is pending, [Elizabeth] is granted primary custody of the parties’ minor child, because that is what is in the best interest of the parties’ child, subject to the visitation privileges of the [Patrick], which shall be as follows: every Wednesday at his parents’ house . . . from 6 p.m. to 8 p.m.; every other weekend from Friday at 5 p.m. to Sunday at 5 p.m. This weekend [Patrick] shall return the minor child to [Elizabeth] at 5 p.m. Saturday, December 16, since he has had the minor child since December 14. [Patrick] shall have Christmas visitation from 8 a.m. on December 26 to 5 p.m. on December 27. If the parties agree for [Patrick] to have extra visitation time, that is fine with the Court.

6. There shall be no contact between the minor child and any of [Patrick’s] female friends, unless they are related to him, nor is the minor child to have any contact with any person of romantic interest to either party.

7. . . . [Patrick] shall pay $851.00 per month to [Elizabeth] beginning December, 2023, and he shall continue to cover the child’s health insurance premium and one-half of the child care expense. [Patrick] is paid bi-weekly, accordingly, his bi- weekly support payment will be $392.77, beginning December 15, 2023. . . .

9. The parties own a house and acreage . . . [in] Springdale, Arkansas. [Elizabeth] shall have exclusive possession of the said marital home and acreage. No later than December 20, 2023, [Patrick] shall surrender to [Elizabeth], the gate opener and administrative rights to the cameras and security system for the marital home, and [Elizabeth] shall be responsible for any fees related thereto.

This arrangement continued until the final hearing on Elizabeth’s complaint was held

approximately three months later on March 29, 2024. Elizabeth repeated much of her

testimony that she offered at the temporary hearing. She explained that Patrick told her that

5 he no longer wanted to be married to her on October 14, 2023, which was only eighty days

after they had adopted MC. She explained that he told her that “he wanted a new wife, a new

life, and a new family.” After their separation, Patrick made the joint-custody schedule that

resulted in MC being transferred every few days. Although Elizabeth tried to make

suggestions or ask for changes, Patrick refused to make any changes. Elizabeth repeated that

MC regressed during that period of time as follows:

[MC’s] tantrums increased. His -- he would chew his fingers. He was aggressive to other kids. His separation anxiety was through the roof. I couldn’t walk down the hallway without telling him where I was going, or take him with me, or he would have a meltdown. He had a hard time -- he never knew where he was going, so he was constantly asking, um -- but, yeah, it was a -- he started baby talking, potty training got harder, he wasn’t sleeping well, . . . He started calling a lot of females mom.

Elizabeth testified that after she was awarded temporary primary custody, MC’s

behavior improved. MC no longer chews his fingers or shows aggression toward other

children. His baby talking had also improved. She admitted that he still struggles, but there

has been a lot of improvement. Elizabeth explained that she had to take someone with her

to custody exchanges because Patrick yelled at her in front of MC at the first exchange after

the temporary hearing. Patrick yelled at Elizabeth, “I hope you’re happy with what you’ve

done. What the Judge did was illegal. Now I have to appeal. You had no evidence. All you

did was lie and cry.” Elizabeth said that the exchange left MC confused, and she is no longer

comfortable being around Patrick alone.

6 Elizabeth asked that she continue to have primary custody of MC. She testified that

he needs stability, including one common place he could come home. She said that MC still

struggles after visitations with Patrick.

He has a really hard time sleeping. Until the middle of February, it would take four to five nights before he would sleep okay. He, um, he would just cry and cry and scream and call for me, and I would have to sleep on his floor, or I would bring him to bed with me. And then that started to subside and get less frequent about the middle of February. Now we deal with night terrors. That started about two or three weeks ago where I have to wake him up, give him something positive to do. And then sometimes he’ll want to come and sleep with me, and sometimes he goes back to his own bed. He also has started chewing his fingernails off at the skin. . . . He also has been -- after he returns, he’s pretty aggressive with me, so he will pull my hair, and he will hit me, and he will kick me, and, uh, so those are behaviors that are new as well. Those happen usually the first two days after he’s been gone for the weekend.

Elizabeth said that she tries to foster a good relationship between Patrick and MC. She had

purchased a gift for MC to give Patrick for Christmas, took him to the park to spend extra

time with Patrick, facilitated FaceTime calls, and tells MC that Patrick loves him every night

before bedtime. As part of MC’s bedtime routine, Elizabeth sings a family bedtime song

with MC. The lyrics of the song repeat the name of each family member who loves him.

She said that she has continued to include Patrick’s name in the song. After MC came back

from a visitation with Patrick, MC began singing a different version of the song that said,

“Mommy loves you blah.”

When asked about visitation, Elizabeth testified that she wanted to keep the current

visitation schedule as ordered in the temporary order. She said the order gave Patrick

visitation every other weekend and an additional two hours on Wednesday. When asked

7 whether she thought that was enough time for Patrick to spend with MC, Elizabeth explained

that she considered MC’s “stability . . . to be the most important” consideration.

Elizabeth testified that Patrick did not return the gate opener or give her

administrative rights to the security cameras as ordered in the temporary order. Instead,

Patrick had installed additional cameras on the property and moved things on the property

even though Elizabeth was given exclusive possession of the property. Elizabeth stated that

she felt uncomfortable because Patrick had made comments to her about when she was or

was not home. She was concerned that Patrick would continue to monitor her.

Elizabeth explained that Patrick had lost his job at Walmart after the temporary

hearing and that she and MC had lost their health insurance for a time as a result. Elizabeth

thought MC could benefit from counseling and explained that she had been trying to find

a counselor that had availability. Losing insurance and Patrick’s removing her access to the

health savings account had affected her ability to get MC counseling. When asked whether

she thought Patrick was a “good dad,” Elizabeth responded, “I think that a good dad puts

the interest of his child ahead of his own, and he has shown not to do that, so I’m not sure.”

Ashley Dimmit, MC’s former foster mother, testified that she had cared for MC from

June 2021 through December 2022. MC was five months old when he first moved in with

her and her husband. During that time, MC struggled with transitions, including visitations

with his biological mother and daycare. Ashley explained that MC struggled sleeping and

chewed his fingers. She thought that MC was doing well after he transitioned into Patrick

and Elizabeth’s care, and she has continued to see MC at least two to three times a month.

8 However, she noticed “a lot of regression” after Patrick left the marital home, including MC’s

chewing his fingers, using baby talk, and biting his lip. She even noticed a bruise on Elizabeth

where MC had bitten her. Ashley thought those behaviors had improved after the temporary

hearing when Elizabeth was awarded temporary primary custody.

Ashley testified that MC was a “Garrett’s Law baby” and described MC’s challenges

throughout the dependency-neglect proceedings. MC was underweight, and it took

approximately a year before MC lost the “failure-to-thrive” designation. Copies of the

relevant documents and orders from the dependency-neglect and adoption case were

admitted into evidence.

Jenna Bertuca, MC’s maternal aunt, testified that she is a special-education teacher.

She has regular contact with MC and is one of MC’s Sunday school teachers. Jenna stated

that she noticed a change in MC’s behavior from November 1 until December 15, 2023

(from the separation until Elizabeth was granted temporary primary custody). During that

period of time, MC would no longer share with other children and instead became

controlling and hit them. He would become confused and easily angered. Jenna said that

those behaviors had improved since Elizabeth was granted temporary primary custody.

However, she still notices that MC has separation anxiety when he is away from Elizabeth.

Reverend Diane Solberg testified that she is a pastor at Bentonville Community

Church and an ordained elder in the Church of the Nazarene. She said that some of her

responsibilities include the preschool that MC attends and that she has been able to observe

9 MC at drop offs, pick ups, and in the classroom. Reverend Solberg stated that she also

knows Elizabeth because they both serve in the Nazarene district as children’s pastors.

Regarding MC’s behavior, Reverend Solberg testified that MC was a happy child

when he first started at the school. However, after the separation and before Elizabeth was

granted temporary primary custody, MC “was more aggressive in situations in the

classrooms.” He “became more dependent on Elizabeth’s presence” and would not want her

to leave. She said that since Elizabeth had been granted temporary primary custody, MC has

been less aggressive, but his separation anxiety still persists.

Robert Bertuca, Elizabeth’s father, testified that he works at Walmart as a director

over the security technology department. Patrick had worked in an adjacent department,

and Robert knew that Patrick was Brittany Bray’s direct supervisor. Robert testified that

Walmart has a strict antifraternization policy between managers and their direct reports. He

was interviewed as part of an internal investigation into the nature of Patrick and Ms. Bray’s

relationship. Robert explained that Patrick no longer works for Walmart, and Ms. Bray was

transferred to a different job.

Robert testified that he helped Elizabeth with trying to prevent Patrick from accessing

the security cameras after the temporary order was entered. However, since he “factory reset

the entire network,” Patrick had tried to regain access and installed additional cameras. On

cross-examination, Robert acknowledged that Patrick’s parents live in another home on the

property and that Elizabeth supplies their internet service. Robert explained that once he

recovered access to the cameras, he “found over 55 hours of downloaded video and audio of

10 Elizabeth from the inside and the outside of the house that Patrick’s mother, Carol, had

downloaded prior to the transfer of the system.”

Shelli Bertuca, Elizabeth’s mother, testified that she had noticed the same changes in

MC’s behavior as already noted by the other witnesses. Shelli had heard MC scream that he

wants to stay home when she and Elizabeth try to get him ready for visitation with Patrick.

She had never heard Elizabeth say anything derogatory about Patrick in front of MC. When

asked whether Patrick is a “good dad” on cross-examination, Shelli responded, “I think he

was originally. I think that his choices at this point are not showing that he has [MC’s] best

interest at heart. . . . There could have been a way to do things better for [MC’s] benefit.”

Carol Karlowski, Patrick’s mother, testified that she lives in a home on the same

property as the marital home and had lived there since April 2020. Carol claimed that she

had asked Patrick to help install cameras on the property. She admitted downloading video

footage, but she explained that she did so because she did not think Elizabeth was feeding

her chickens while she was away as requested. She claimed that she needed access to the

cameras to monitor the gate and the dogs.

Carol stated that since the temporary hearing, Patrick had been exercising his

Wednesday visitation at her house. She had not noticed any unusual behaviors and stated

that MC was “always happy to be there.” She thinks Patrick is a very good father.

Brittany Bray testified that she lives in Pea Ridge, Arkansas, and that Patrick lives on

the other side of her street. Ms. Bray admitted she was in a romantic relationship with

Patrick but said that it did not start until January 20, 2024, after Patrick’s separation from

11 Elizabeth. She admitted that before that time, Patrick was her supervisor and friend. Ms.

Bray explained that she was present for MC’s adoption and that her children had played

with MC. She had not seen MC since December 15, 2024; however, she stated that she had

seen MC with Patrick after the separation. She did not see any bad behavior and thought

MC was a happy child. Ms. Bray denied that her job change had anything to do with Patrick.

Instead, she claimed that she had asked to change jobs so that she would have more flexibility

to work from home. She thinks Patrick is a good dad on the basis of the interactions she

sees with Patrick and MC.

On cross-examination, Ms. Bray testified that she did not think it was strange that

Patrick moved to Pea Ridge when he had lived in Springdale and was working at the time in

Bentonville. She claimed that she had sent him links to real estate locations in Pea Ridge

simply as a friend. Ms. Bray admitted that they both attend the same church and that they

had spent the night only once at each other’s homes. She further denied that Patrick’s

termination from Walmart had anything to do with their relationship even though she

admitted that there was an investigation. Instead, Patrick told her that he had been

terminated because “he refused to give up his . . . personal phone” after Walmart asked to

inspect it. Patrick claimed that his phone “had his mother’s health information” and “the

stuff for the divorce” on it.

Barbara Cardenas testified that she is Patrick’s former coworker. She testified that

she had seen Patrick with MC at a birthday party. She thought Patrick and MC interacted

“[l]ike father and son” and loved each other.

12 Patrick testified and repeated some of his testimony from the temporary hearing

regarding his care of MC. He said that he had bonded with MC and that MC has “always

been a happy child.” He denied moving to Pea Ridge to be closer to Ms. Bray. Instead, he

claimed that he wanted to move there “because it is a smaller community like [he] grew up

in.” Patrick said that he does not have any problems with his visitation with MC on his

weekends. He explained that MC enjoys watching the drones delivering packages to his

home. However, Patrick stated that because he thought the temporary order prohibited him

from having any female friends around MC, MC is left isolated and could not attend any

birthday parties during his time. Therefore, Patrick asked for joint custody.

Patrick denied that MC has separation anxiety while MC is with him. Patrick claimed

that MC is fine during his time and even asks to stay with him on Wednesday nights. He

explained that he asks Elizabeth for more time with MC, but Elizabeth tells him that she

wants to follow the court’s temporary order. He admitted that he had occasionally been

given a few more hours of visitation, but he wanted extra overnight visitation with MC. He

responded that Elizabeth struggles with communication when asked whether he thought he

and Elizabeth could “communicate well enough about [MC] to do joint custody.” Patrick

also admitted there had been times he had to miss visitation time on Wednesdays when MC

had a cold because he could not expose his mother, who suffers from health issues, to any

sicknesses. Patrick stated that he had conversations with Elizabeth about counseling for MC,

and Elizabeth had told him that she was looking into it. He claimed that he obtained

COBRA insurance for MC and himself two weeks after he was terminated form Walmart,

13 and it was backdated to the day after his termination. He denied any nefarious intent in

installing additional cameras for his parents on the property.

Patrick said that he had to separate from Elizabeth because of their communication

issues that had been occurring even before the adoption. He said that he had tried to work

on their issues and had “hard conversations” with Elizabeth. However, he testified that

Elizabeth had told him not to disclose their marital issues to the Arkansas Department of

Human Services (DHS) because she did not want them “to do anything to jeopardize the

adoption.”

On cross-examination, Patrick admitted that he misrepresented his marital situation

to DHS before MC’s adoption. He also admitted that he told Elizabeth he wanted a

separation on October 14, 2023, and admitted to her that he had an emotional affair with

Ms. Bray. When Patrick was asked more about his discussions with Elizabeth about

obtaining COBRA insurance, he explained that he had messaged her the following when

Elizabeth asked whether COBRA was an option: “It probably is an option, but it costs

money. I officially don’t have any. We will need to apply for ARKids for [MC] since our

low income should allow it now.” Patrick admitted that he did not know if he had told

Elizabeth that he was purchasing COBRA insurance for him and MC, but he thought he

had told her after it was “active.”

Patrick admitted that he was “still sleeping” with Ms. Bray. When asked whether he

thought it was appropriate for MC to be around another woman he was sleeping with while

14 he was still married to Elizabeth, Patrick responded that he did not think it was an issue

because he had told Elizabeth that he did not want to be with her anymore.

At the conclusion of the hearing, counsel for the parties made closing arguments. In

relevant part, Elizabeth’s counsel reiterated the difficulties MC had experienced over his

short life, the fact that Elizabeth’s witnesses explained the difficulty MC has with transitions,

and Elizabeth’s belief that MC “needs the stability of one home.” Counsel asked the court

to “keep the primary custody situation in place that was put into place at the Temporary

Order . . . we believe that, all those reasons, the situation that is in place now should

continue.”

Patrick’s counsel asked that Patrick be awarded joint custody. Counsel explained that

Elizabeth failed to show any photographs of MC chewing his fingers or evidence of doctor’s

appointments to support her contention that MC suffers from separation anxiety. He argued

that even if the court thought it was a concern, the court could order MC to attend

counseling to help alleviate the behaviors. Counsel complained that Elizabeth’s goal was to

punish Patrick instead of acting in MC’s best interest.

On April 19, 2024, the circuit court filed a thirty-four-page order granting a covenant

marriage judicial separation, primary custody, visitation, child support, and possession of

marital property. It directed that the file be sealed and made other findings. In addition to

quoting the relevant statutes and case precedent regarding covenant marriages, the circuit

court made very detailed specific findings and outlined much of the history of the case and

15 testimony already summarized above in this opinion. The following findings are particularly

relevant to this appeal.

The circuit court stated that one of the most credible, unbiased, and insightful

witnesses at the trial was Ashley Dimmit, MC’s former foster mother. The circuit court

discussed Ashley’s testimony and stated the following:

Ashley Dimmit has known [MC] the longest, as she has known [MC] since he was 5 months old; she has known [MC] 34 months out of [MC’s] 39 months on this earth. She testified that [MC] was placed with her family for 18 months, from June 2021 (at age 5 months) until December 2022 (at one week shy of turning 2 years old). Ashley Dimmit attended every Dependency/Neglect hearing for [MC] from June 2021 through December 2022 and also attended the adoption hearing on July 26, 2023.

....

After 18 months with the Dimmits, [MC] was placed with Elizabeth and Patrick in December 2022 the same month he turned two years old and Ashley Dimmit testified that [MC] did well when placed with Elizabeth and Patrick and that [MC] was a happy toddler.

In the time period from the adoption being granted on July 26, 2023 until the time of Patrick leaving the marital residence on November 4, 2023, Ashley Dimmit testified that “[MC] was doing well” based upon her interactions with [MC] during that time, which occurred two or three times a month. When asked whether there were any changes she observed in [MC] after Patrick moved out of the marital home in November 2023, Ashley Dimmit testified: “Yes, there were notable changes, a lot of regression and some of those behaviors that I had, some of them, I had never seen, but definitely others that I would reassure Elizabeth that were probably due to the transition. I’ve had a lot of training in kids with trauma and transitions and stability changes and with foster care, and it comes with the territory.”

Ashley Dimmit testified [regarding the period between the separation and the temporary hearing and Patrick’s joint custody plan]: “[MC] has a tendency when he’s nervous or things are a little uncomfortable for him, he will chew on his fingers really bad, to the point of sometimes causing marks. He would also bite his lower lip and causes it to be really chapped and irritated. I have noticed a bruise on Elizabeth from him biting, that was one of the new behaviors . . . and he regressed in his speech.”

16 Ashley Dimmit testified that in her interactions with [MC] from December 15, 2023 until March 29, 2024, “things have gotten better such as working on potty training again.” She testified that [MC] is still working to “overcoming some of the fearful things, like [MC] was really worried if Elizabeth was out of his sight. I’ve witnessed that myself. Panic would set in. Seems to be he’s a little bit more at ease now, not as on edge. . . . Compared to other children I’ve been around, transition are more difficult for [MC].”

The last time Ashley Dimmit observed [MC] having negative behaviors was during a trip to the Amazeum in February 2024 with [MC], Ashley and her children and Elizabeth. She noticed a lot of big behaviors from [MC] that day. He was really very fearful of Elizabeth being out of his sight and was chewing on his fingers and lip. Since the trip to the Amazeum, the last several times Ashley has seen [MC], things seemed to have gotten a little bit better, with improvement and he was not chewing on his fingers. Ashley saw no negative behaviors from [MC] when she saw him last week and no negative behaviors when she saw [MC] two weeks ago.

Diane Solberg also testified at the trial; her testimony was also very credible and helpful to the Court in determining what is in the best interest of [MC]. . . . Pastor Solberg testified that she had concerns about [MC’s] behaviors from November 1, 2023 to December 15, 2023: [MC] was more aggressive in situations in the classroom; since January 2024 to now, [MC’s] behaviors “are not as aggressive, but when Elizabeth walks away, he still has some separation from her, he wants her with him, he wants to know where she is, and that still persists.”

Since the December 15, 2023 temporary hearing, [MC] is doing better than he was when the 4 days on/3 days off schedule demanded by Patrick was occurring from November 4, 2023 until December 15, 2023. However, [MC] is still having separation issues from Elizabeth. The Court finds by clear and convincing evidence presented at the trial establishes that the reason [MC] does not have separation issues when leaving the company of Patrick is that [MC’s] primary attachment is to Elizabeth.

It is uncontroverted that 80 days after the adoption was finalized, Patrick told Elizabeth that he no longer wished to be in a relationship with Elizabeth. Elizabeth testified Patrick’s declaration on October 14, 2023 that he wanted a “new wife, a new life, and a new family” and it came as a complete surprise to Elizabeth. She testified that Patrick moved out of the marital home on November 4, 2023. Upon moving out of the marital home Patrick, insisted that [MC] spend 4 days on/3 days off because he testified that such a joint custody arrangement was fair. Elizabeth made requests

17 to Patrick to not use such a schedule as she believed that schedule was not in [MC’s] best interest. Patrick did not heed Elizabeth requests and she requested a temporary hearing. At that temporary hearing on Dec 15, 2023 (when this judge granted temporary primary custody to Elizabeth with temporary visits to Patrick every other weekend and Wednesday evenings). The 4 day on/3 day off schedule imposed by Patrick had a horrible effect on [MC] and as a result, this judge stopped that schedule.

When Patrick moved out of the marital home and put into place the 4 days on/3 days off with him and the other days with Elizabeth, [MC] reacted with severe adjustment problems: he threw fits, chewed his fingernails to the quick, reverted to speaking baby talk, and regressed in his potty training. These negative behaviors were described in detail in the very credible testimony of Ashley Dimmit, Pastor Solberg, Elizabeth and Aunt Jenna Bartuca.

[MC] went from a chaotic and traumatic first 5 months of life, to a loving stable home with the same primary caregivers (the Dimmit foster family for 18 months), then placed with Elizabeth & Patrick- virtual strangers to [MC]. [MC] met Elizabeth and Patrick in November 2022 and placed with them the next month when he turned 2.

[MC] had been placed with Elizabeth & Patrick for 10 months when on October 14, 2023, Patrick dropped the bombshell on Elizabeth that he wanted a new wife, new life, and new family. Elizabeth testified that Patrick told her he resented that she was infertile. On the stand, Patrick testified that he left the relationship because Elizabeth wouldn’t communicate with him about difficult subjects important to him.

Patrick’s testimony that he and Elizabeth had been having problems in their marriage “for a while” (before [MC] was placed with them). Patrick testified that he did not disclose the marital problems to DHS before [MC] was placed with them because Elizabeth told him “not to tell DHS.” This Court finds that Patrick’s testimony is incredulous.

Much of Patrick’s testimony was incredulous as his demeanor, facial expressions and pomposity showed a lack of truthfulness and sincerity, laced with anger about things (or people) he could not control or people not being “fair to him” (he testified that he tried to appeal Walmart’s decision to terminate his employment

18 because “it was not right” even though he was having an ongoing inappropriate affair with Brittany and he was her boss and he knew of the no fraternization policy of Walmart) he continued to show a lack of empathy of what [MC] has been through since birth and what he has put [MC] through.

Patrick, choosing to have [MC] placed with Elizabeth and him, knowingly placed [MC] a child with a known history of trauma and a severe need for stability into a family and home which Patrick already knew he would be leaving (unbeknownst to Elizabeth). Then Patrick continued the omission of not telling DHS of the marital problems despite the 6 months leading up to the adoption finalization- and Patrick went through with the adoption.

When asked whether Patrick “is a good dad?” several witnesses testified that they thought Patrick was a good dad until he started placing his own wishes and desires above the needs of [MC] and that “originally, Patrick was a good dad but with his choices at this point, “no,” he is not a good dad are very accurate observations. Although Carol testified that her son Patrick is a good dad, his actions since December 2022 do not show that he is.

The Court finds by clear and convincing evidence that Patrick's actions in going forward with [MC] being placed with him and his wife all the while knowing that he was no longer happy in his marriage and he would be ending that relationship soon show a total lack of acting in [MC’s] best interest. Appallingly, Patrick went forward with the adoption and the finalization of the adoption all the while having problems in the marriage (but not telling Elizabeth that the communication problems were so bad he wanted out of the marriage, not telling DHS of the marital problems, and then moving out of the marital home) causing more emotional trauma to [MC].

The testimony of Patrick and Brittany is incredulous. Patrick had been Brittany’s boss at Walmart for several years. Patrick hadn’t sent flowers to his wife with [MC’s] name on it, nor had Patrick even sent flowers to co-worker Barbara Cardenas. Much of Brittany’s testimony was not truthful. Ms. Bray incredulously testified she did not know of Patrick’s plans to leave his wife. Patrick’s testimony that he moved to Pea Ridge because he “always wanted to live in a small town like he did when he was a boy” was the reason he chose to rent a house in Pea Ridge and not because Brittany lives right by the rental is unbelievable and ridiculous. The court finds B. Bray’s testimony regards her lack of knowing of Patrick’s plan to leave his wife and the level of her involvement with Patrick over the last 13 months is incredulous.

19 Patrick could have stayed put on the 15 acres of marital property, move in with his parents or live in one of the out buildings on the property help daily his mother (who has cancer) and father who live right next door to the marital residence and continue to be a daily presence in [MC] life, and not demand that [MC] make the adjustments that no 3 year old with a history of trauma should have to make. However, Patrick chose to not tell DHS that he believed there were problems in his marriage, he chose to go forward with placement of [MC] with him and his wife, went forward with the adoption process and its finalization, while having an inappropriate relationship with his work subordinate and having plains to leave his wife, all the while ignoring [MC’s] very important emotional needs.

Patrick still expects that [MC] emotional developmental needs should play second fiddle to Patrick’s needs, that Patrick should have [MC] 50% of the time no matter the emotional cost to [MC].

Ten months after being placed in another new home with new people, [MC] once again is to pay the price for the choices of the adults in his life, resulting in [MC] having to deal with more trauma.

Once this court set forth a specific visitation schedule for Patrick on December 15, 2023, Patrick testified that, much to his disgust, Elizabeth wouldn’t agree to give him additional overnights with [MC] and that Elizabeth wanted to “follow the court order”; his demeanor on the stand was that he was appalled that Elizabeth would follow the order and not agree to additional overnights.

Elizabeth testified at the very 1st exchange of [MC] after the December 15, 2023 temporary hearing, Patrick yelled at Elizabeth while she was holding [MC]. Yelling “do you know what you are doing? . . . what that the Judge did was illegal. . . .” After that exchange which alarmed and frightened Elizabeth, she brought another person with her at each exchange. Patrick testified it bothered him that Elizabeth brought another person with her for exchanges, yet he created the hostile environment in the first exchange and Elizabeth was taking steps to protect herself and [MC] from Patrick’s behavior. These actions of Patrick also show that his parenting time should be limited for the best interest of [MC].

THIS COURT HAS CONSIDERED JOINT CUSTODY AND ALTHOUGH JOINT CUSTODY IS FAVORED IN ARKANSAS THIS COURT FINDS BY CLEAR AND CONVINCING EVIDENCE THAT JOINT CUSTODY IS NOT IN [MC’S] BEST INTEREST AND THE PRESUMPTION THAT JOINT CUSTODY IS IN [MC’S] BEST INTEREST IS REBUTTED

20 The Court finds by clear and convincing evidence that joint custody is not in [MC’s] best interest as set forth in these written findings of facts, specific findings and conclusions of law as to this Court’s determination as outlined in this lengthy order.

It is clear and convincing from the evidence that Patrick and Elizabeth cannot co-parent [MC] together and cannot communicate with each other. For example after Patrick moved out on November 4, 2023, he dictated a joint- custody “shared” schedule (4 days on 3 days off) and would not adjust the schedule at the request of Elizabeth and ignored her valid and serious concerns about the effect of the “shared” time on [MC]; that Patrick yelled at Elizabeth during the 1st exchange while Elizabeth was holding [MC] after this Court found that the shared time schedule Patrick imposed was not in [MC’s] best interest; that Patrick doesn’t want Elizabeth to bring anyone with her other than [MC] to the exchange (failing to own up to Elizabeth’s valid worries about her safety given Patrick’s previous behavior), belittling Elizabeth about [MC’s] needs because “she doesn’t communicate properly” with him. Patrick testified that he left his wife because “she doesn’t communicate about things important to me.”

From all of the testimony, it appears that as long as Elizabeth goes along with what Patrick dictates, there are not communication problems. The main communication problems the Court sees are Patrick’s lack of communication and Patrick having and planning a secret life: Patrick not disclosing his marital issues with DHS, not communicating the truth to his wife about his “work” relationship with Brittany, not communicating with his wife that he was going to file his 2023 tax returns married filing separately, that he received a tax refund and big work bonus, and that he with the help of his girlfriend have listed marital property (the excavator for sale on her face book page). Furthermore, the fact that Patrick sees nothing wrong with having [MC] around Patrick’s paramour, while Patrick is still married to Elizabeth, is more evidence that Patrick’s actions do not have [MC’s] best interest as the number one priority. Additionally, Patrick shows a propensity to ignore terms of court orders. Elizabeth is not in agreement to joint custody for very good reasons.

How can a parent, namely Patrick, properly co-parent on a joint custody schedule if he cannot be truthful and communicate with the other parent in a give and take way to insure that the best interests of 3 year old [MC] (who has an intense history of trauma) are met. Patrick cannot.

THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE THAT JOINT CUSTODY IS NOT IN THE BEST INTEREST OF [MC] AND

21 THE COURT GRANTS SOLE CUSTODY OF [MC] TO PLAINTIFF ELIZABETH, WITH VISITATION/FAMILY TIME BETWEEN DEFENDANT PATRICK AND [MC] AS FOLLOWS:

No overnight visitation.

- Every Tuesday from 3:00pm - 6:00pm, with Patrick picking [MC] up from preschool at 3:00 p.m. and returning [MC] at 6:00 p.m. to the marital home occupied by Elizabeth and [MC].

- Every Saturday from 10:00am - 6:00pm Saturday beginning Saturday April 20, 2024, with Patrick picking [MC] up from the marital home at 10:00 a.m. and returning [MC] to the marital home occupied by Elizabeth at 6:00pm. However, [MC] shall have 2 full weeks in the summer with Elizabeth to take [MC] on vacation or out of town, during which time there shall be no visitation, other than calls or short face time calls, with Patrick.

- Thanksgiving Day (Odd years) 10:00am - 6:00pm

- Christmas Eve (Even numbered years) 10:00 a.m. - 6:00 p.m.

- Father’s Day (Every year) 10:00am - 6:00pm

- Memorial Day 10:00am - 6:00pm

- Labor Day 10:00am - 6:00pm

- 4th of July 10:00am - 6:00pm

Patrick testified that he installed an additional surveillance camera after he moved out of the marital home because his parents were not able to do so themselves due to his parents’ health issues. He did so after this court ordered Patrick to turn over control of the surveillance system to Elizabeth. The testimony is that parents-in-law and Patrick have access to that footage. It is clear from the testimony that Patrick is able to monitor all of Elizabeth’s comings and goings to the marital home. All of the cameras and surveillance that were and are put in place by Patrick and monitored by Patrick are additional ways Patrick is harassing and intimidating Elizabeth. The testimony shows that Patrick is an expert in computers, surveillance and security and that those areas of knowledge are what his job at Walmart is about. Patrick’s ongoing actions since the separation

22 show that he wants to have power and control over Elizabeth to the detriment of Elizabeth and [MC].

[MC] shall have no contact whatsoever with Brittany Bray, or any other woman with whom Patrick is involved in an emotional affair, sexual relationship, or romantic relationship.

(Any emphasis in original.) This appeal followed.

II. Standard of Review

In reviewing domestic-relations cases, this court considers the evidence de novo and

will not reverse unless the circuit court’s findings are clearly erroneous. Heileman v. Cahoon,

2024 Ark. 164, 699 S.W.3d 85; McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91. A finding

is clearly erroneous when, although there is evidence to support it, the reviewing court is left

with the definite and firm conviction that a mistake has been made. Cooper v. Kalkwarf, 2017

Ark. 331, 532 S.W.3d 58. It is well settled that the primary consideration is the welfare and

best interest of the child, while other considerations are merely secondary. McNutt, supra.

We give due deference to the superior position of the circuit court to evaluate and judge the

credibility of the witnesses in child-custody cases, and this deference to the circuit court is

even greater in cases involving child custody, as a heavier burden is placed on the circuit

court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their

testimony, and the best interest of the children. Cooper, supra.

23 III. Child Custody

In a proceeding for a judicial separation in a covenant marriage, a court may award a

spouse all incidental relief afforded in a proceeding for divorce, including, but not limited

to, spousal support, claims for contributions to education, child custody, visitation rights,

child support, injunctive relief, and possession and use of a family residence or joint

property. Ark. Code Ann. § 9-11-809(d) (Repl. 2020). In an original child-custody

determination, there is a rebuttable presumption that joint custody is in the best interest of

the child. Ark. Code Ann. § 9-13-101(a)(1)(A)(iv)(a) (Supp. 2023). However, the

presumption may be rebutted if the court finds by clear and convincing evidence that joint

custody is not in the best interest of the child; if the parties have reached an agreement on

all issues related to custody of the child; if one of the parties does not request sole, primary,

or joint custody; or if a rebuttable presumption described in subsection (c) or subsection (d)

of this section is established by the evidence. Ark. Code Ann. § 9-13-101(a)(1)(A)(iv)(b).

While there is a statutory preference for joint custody, this preference does not override the

ultimate guiding principle, which is to set custody that comports with the best interest of the

child. Van Pelt-White v. White, 2025 Ark. App. 464, 724 S.W.3d 589. Each child-custody

determination ultimately must rest on its own facts. Tubbs v. Tubbs, 2025 Ark. App. 315,

716 S.W.3d 204.

Here, the circuit court specifically found by clear and convincing evidence that

Elizabeth rebutted the presumption that joint custody was in MC’s best interest and awarded

Elizabeth primary custody subject to Patrick’s visitation as ordered. Patrick argues on appeal

24 that the presumption was not rebutted and that primary custody with Elizabeth was not in

MC’s best interest. In support, he argues that he is a “good parent,” that he had previously

shared in the parenting responsibilities before separation, that MC’s pre-adoption anxiety

does not preclude joint custody, that the primary custody decision was merely punishment

for leaving Elizabeth, and that there had been no discord about coparenting. Accordingly,

Patrick argues that we must reverse the custody decision and remand for joint custody. He

also argues that we should vacate and remand any award of child support and alimony

because the circuit court clearly erred in granting Elizabeth primary custody. We disagree.

We cannot say that the circuit court clearly erred in finding that the presumption had

been rebutted and that there was clear and convincing evidence that joint custody was not

in MC’s best interest. In particular, Patrick analogizes this case to Grimsley v. Drewyor, 2019

Ark. App. 218, 575 S.W.3d 636, and argues that Grimsley is instructive here. However, it is

important to note that in Grimsley and other cases cited in his brief, we affirmed the circuit

court’s award of joint custody, specifically giving deference to the circuit court to weigh the

evidence before it. In Grimsley, we acknowledged that most joint-custody situations involve

some amount of disagreement and affirmed after stating that Grimsley testified that the

parties had raised the children as a team, and she agreed when the parties separated to joint

custody with equal time. Those are not the facts here.

The circuit court heard evidence from multiple witnesses that MC had significant and

concerning behavioral changes that started after the parties attempted joint custody pending

judicial resolution. The circuit court gave considerable weight to the testimony of Ashley,

25 Reverend Solberg, and Jenna confirming the regressive behaviors MC exhibited while the

parties shared joint custody and the improvement since Elizabeth had been given temporary

primary custody. Although Patrick testified that he did not see any of these concerning

behavioral changes, the circuit court specifically found his testimony not credible. In fact,

the circuit court specifically noted the following regarding its perception of Patrick’s

credibility:

Much of Patrick’s testimony was incredulous as his demeanor, facial expressions and pomposity showed a lack of truthfulness and sincerity, laced with anger about things (or people) he could not control or people not being “fair to him[.]” . . . The testimony of Patrick and Brittany is incredulous. Patrick had been Brittany’s boss at Walmart for several years. . . . Much of Brittany’s testimony was not truthful.

Further, in light of the testimony offered that the circuit court found credible, we cannot

agree with Patrick’s contention on appeal that MC’s anxiety issues were “not caused by joint

custody” and were “insubstantial.” Accordingly, given our standard of review and the

deference we give to the circuit court to evaluate and judge the credibility of the witnesses in

child-custody cases, we cannot say that the circuit court’s findings were clearly erroneous and

affirm on this point.

III. Visitation

Next, Patrick argues that prohibiting him from having any overnight visitation with

MC and limiting his visitation time to only eleven hours a week was unreasonably restrictive.

The primary consideration regarding visitation is the best interest of the child. Baber v. Baber,

2011 Ark. 40, 378 S.W.3d 699. Important factors the court considers in determining

26 reasonable visitation are the wishes of the child, the capacity of the party desiring visitation

to supervise and care for the child, problems of transportation and prior conduct in abusing

visitation, the work schedule or stability of the parties, and the relationship with siblings and

other relatives. Id. We will not reverse a circuit court’s findings pertaining to visitation

unless they are clearly erroneous. Styles v. Styles, 2024 Ark. App. 435, 699 S.W.3d 693; Kinder

v. Kinder, 2022 Ark. App. 476, 655 S.W.3d 880.

Arkansas Code Annotated section 9-13-101(b)(1)(A)(vii)(a) states that “a parent who

is not granted sole, primary, or joint custody of his or her child is entitled to reasonable

parenting time with the child unless the court finds after a hearing that parenting time

between the parent and the child would seriously endanger the physical, mental, or

emotional health of the child.” Here, the circuit court recited this provision in its order and

found that a “reasonable amount of parenting time” or “overnight visits” would “seriously

endanger the mental and emotional health of [MC].” The circuit court ordered that Patrick

was not to have any overnight visitation and granted him the following visitation schedule:

- Every Tuesday from 3:00pm - 6:00pm, with Patrick picking [MC] up from preschool at 3:00 p.m. and returning [MC] at 6:00 p.m. to the marital home occupied by Elizabeth and [MC].

- Every Saturday from 10:00am - 6:00pm Saturday beginning Saturday April 20, 2024, with Patrick picking [MC] up from the marital home at 10:00 a.m. and returning [MC] to the marital home occupied by Elizabeth at 6:00pm. However, [MC] shall have 2 full weeks in the summer with Elizabeth to take [MC] on vacation or out of town, during which time there shall be no visitation, other than calls or short face time calls, with Patrick.

27 - Christmas Eve (Even numbered years) 10:00 a.m. - 6:00 p.m.

Patrick argues that the circuit court’s decision is clearly erroneous because “there is

no justifiable basis in this record to deny [him] overnight visitation or more weekend time.”

He argues that the circuit court’s order was designed to “punish him for having an unhappy

relationship” and moving closer to Ms. Bray. Although he acknowledges that the circuit

court stated that MC’s separation anxiety was the basis for the circuit court’s ruling, he

contends that “justification is nonsense.” We disagree.

In its temporary order, the circuit court had awarded Elizabeth temporary primary

custody but granted Patrick some overnight visitation every other weekend. Although several

witnesses testified that some of MC’s concerning behaviors had improved, the circuit court

heard evidence that the overnight visitations still caused concerns. Elizabeth testified that

Patrick yelled at her in front of MC at the first exchange after the temporary hearing, leaving

MC confused and necessitating that she have someone with her at future exchanges. She

further explained that MC continued to struggle when he returned from overnight

visitations with Patrick:

He has a really hard time sleeping. Until the middle of February, it would take four to five nights before he would sleep okay. He, um, he would just cry and cry and scream and call for me, and I would have to sleep on his floor, or I would bring him

28 to bed with me. And then that started to subside and get less frequent about the middle of February. Now we deal with night terrors. That started about two or three weeks ago where I have to wake him up, give him something positive to do. And then sometimes he’ll want to come and sleep with me, and sometimes he goes back to his own bed. He also has started chewing his fingernails off at the skin. . . . He also has been -- after he returns, he’s pretty aggressive with me, so he will pull my hair, and he will hit me, and he will kick me, and, uh, so those are behaviors that are new as well. Those happen usually the first two days after he’s been gone for the weekend.

According to Elizabeth, Patrick even took the sweet bedtime song that the parties had taught

MC to remind him of all the people who love him and changed the words to disrespect

Elizabeth. When asked what she thought was best for MC, Elizabeth stated the following in

response: “[MC] needs stability. He needs a routine and a schedule that he can stick to, and

he needs one common place to come home to.”

Although we acknowledge that the circuit court initially announced from the bench

a visitation schedule that included overnight visitation, the circuit court’s detailed written

order held otherwise. To the extent that the circuit court’s bench ruling conflicts with its

written order, if at all, the written order controls over the court’s oral ruling. Anderson v. Ark.

Dep’t of Hum. Servs., 2020 Ark. App. 401, 608 S.W.3d 915. Further, a “circuit court’s

determination of the best interest of a child is not a matter of an amount of recovery prayed

for by a party.” Wilson v. Wilson, 2016 Ark. App. 191, at 9, 487 S.W.3d 420, 426. Given

our standard of review and the deference we give to the circuit court to evaluate and judge

the credibility of the witnesses in child-custody cases, we cannot say that the circuit court’s

findings were clearly erroneous and affirm on this point.

IV. No-Contact Order

29 Under the unique circumstances of this case in which the parties were granted a

judicial separation in a covenant marriage, we note that the parties still retain their marital

status until either reconciliation or divorce. Ark. Code Ann. § 9-11-810 (Repl. 2020).

Further, in custody matters, we have held that the circuit court has the authority to restrict

visitation between a child and a person who is part of their parent’s life taking into

consideration the well-being of the child. Inmon v. Davis, 2025 Ark. App. 494, 24 S.W.3d

657. Under the longstanding public policy of the courts in this state, a parent’s extramarital

cohabitation with a romantic partner in the presence of children or a parent’s promiscuous

conduct or lifestyle has never been condoned. Id. There is no blanket rule that a court must

include a noncohabitation provision in custody and visitation orders any time a parent is

involved in extramarital cohabitation with a romantic partner, and the courts have begun to

recognize that sometimes modern families no longer fit the traditional mold. Id. But the

primary consideration is always the best interest of the child, and “it is a case by case

determination, whether it’s a bad thing or a good thing in a particular case” to allow a child

contact with his or her parent’s romantic partner. Moix v. Moix, 2013 Ark. 478, at 10, 430

S.W.3d 680, 686. “[T]he purpose of non-cohabitation provisions are to promote a stable

environment for the children and not merely to monitor a parent’s sexual conduct.” Id.

Patrick argues that the one-sided no-contact order was clearly erroneous. Here, the

circuit court’s written order stated the following: “[MC] shall have no contact whatsoever

with Brittany Bray, or any other woman with whom Patrick is involved in an emotional

affair, sexual relationship, or romantic relationship.” Patrick argues that the circuit court’s

30 ruling is facially unreasonable and is designed as written to police his sexual morality.

Elizabeth concedes error on this point and explains that the provision should have been a

mutual provision as it was in the temporary order and initially announced in the circuit

court’s oral findings; accordingly, we reverse and remand for the circuit court to reconsider

any restrictions on contact that MC may be allowed with the parties’ romantic partners.

Affirmed in part; reversed and remanded in part.

KLAPPENBACH, C.J., and TUCKER, J., agree.

Matt Kezhaya and Sonia Kezhaya, for appellant.

Hood & Stacy, by: Curtis D. Clements and Craig E. Merutka, for appellee.