Thank you for your patience;
so under the UCCJEA (The federal Uniform Child Custody Jurisdiction Enforcement Act) the proper court with jurisdiction is the child's home state- where the child has resided for the last 6 months; if the child is moved out of that state, the NY court can issue an order that the child is to be returned so the matter can be litigated there.
Third party custody is only allowed in rare circumstances and I will include below the case law support for that, with examples:
Matter of Bennet v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821: before custody can be awarded to a non-parent, there must be a showing of extraordinary circumstances (such as that the children have resided with the third party and have thrived under that care)
Matter of Benjamin B. 234 A.D.2d 457, 651 N.Y.S.2d 571 (2d Dept 1996), a 4 year old boy's custody was awarded to the father's fiancé, because the court found that the father's substance abuse and the mother's "significant psychopathology" constituted "extraordinary circumstances."
The petition that would need to be filed is here
The court may appoint a guardian ad litem to represent the child's best interest-that is entirely up to the judge;
the court will try and preserve the status quo if the situation is such that it provides a safe, nurturing environment because a parent's ongoing absence is a grave concern to the courts.
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