Lester v. Boles, 335 Ga. App. 891

Father (Lester) and mother (Boles), unmarried, had a son in 2009; 2011 order legitimized child and made Boles primary custodian with significant visitation to Lester.
Lester petitioned in 2012 to modify custody, alleging mother’s new job required extensive travel and he had a more flexible schedule.
In April 2014 (hearing transcript not in record), trial court modified custody: parents to alternate weekly custody until the child began first grade, after which primary physical custody would vest with Boles and Lester would have alternating weekends/holidays/school breaks.
Mother moved for reconsideration/new trial, asserting Lester had been drinking and driving (one incident occurred after the modification hearing); a later hearing produced a transcript and testimony of a January 2014 DUI arrest and a 2010 DUI arrest.
Trial court granted mother’s motion (treated as ordinary timely motion for new trial), found two instances where Lester drove in a less-safe condition after alcohol consumption, and amended the order to prohibit both parents from consuming alcohol while caring for the child.
Lester appealed, arguing the weekly-to-school-start custody change was an improper self-executing modification and that the court improperly amended the order based on newly discovered evidence.

Issue	Lester’s Argument	Boles’ Argument	Held
Whether the custody term that automatically changes primary custody when the child begins first grade is an improper self-executing provision	The automatic change is improper because it effects a custody change based on a future event without later judicial evaluation	The change coincides with a predictable, identifiable event (start of first grade) tied to the child’s best interests (need for stability)	Upheld: provision permissible because it is time-limited, predictably triggered, and tied to child’s best interests rather than an arbitrary, open-ended trigger
Whether the court could amend the custody order to add an alcohol restriction based on newly discovered evidence	Trial court lacked authority because mother did not meet the stricter criteria for extraordinary new-trial relief	Mother’s timely (within 30 days) ordinary motion for new trial presented new, material evidence (January 2014 DUI arrest) and pattern evidence (2010 DUI) supporting amendment	Upheld: court did not abuse discretion—the evidence was new, material, and justified amendment; ordinary motion standard applies within 30 days

Scott v. Scott, 276 Ga. 372 (2003) (struck custody provision that automatically shifted custody on a parent’s relocation because it could uproot the child without evaluating best interests)
Dellinger v. Dellinger, 278 Ga. 732 (2004) (invalidated open-ended self-executing custody trigger lacking expiration and insufficient connection to children’s best interests)
Vines v. Vines, 292 Ga. 550 (2013) (standard of review: trial court’s child-custody modification will be upheld unless there is an abuse of discretion)
Holmes v. Roberson-Holmes, 287 Ga. 358 (2010) (appellate court assumes sufficient evidence supports trial court findings in absence of transcript)
Rumley-Miawama v. Miawama, 284 Ga. 811 (2009) (discusses limits on revised visitation orders that automatically take effect)