Family Law Questions? Ask a Family Lawyer Online.
Hello,Thank you for allowing us to assist you with this problem.
I am sorry to hear you are facing this problem.
Under the UCCJEA it would be required that the child live in NY for at least 6 months prior to the NY court having legal jurisdiction to modify the custody order. The 6 month requirement can be waived in instances of immediate emergency of danger for the child where NY could issue a temporary order but MA would ultimately get to decide the issue of custody modification unless the child has been in NY for the 6 months.
Even if the child did return you can still file the modification of custody but would have to do so on MA asking the MA court to force the return of the child to NY. Once the mother moves to NY from MA that is allowed in the current court order but your order does not say anything about a move back to MA so that could be enough to at least get you past the first problem of proving a substantial change in circumstances allowing the court to get to the second part of the problem which is what is in the best interest of the child. It is this second part (best interest of the child) where you would raise issues such as the stepfather and any other inappropriate conditions the mother has exposed the child to since the last court order of custody.