A child custody order can only be modified by another court order. Until a superseding order is issued by the court, the original order is in effect even if the child has physically relocated from one parent to the other.
The court that would normally issue a custody modification order is the court that issued the original custody order. However, in a New York divorce, the Supreme Court (which handles divorce cases) will usually state in the final divorce judgment that the order may be modified by New York's Family Court.
The threshold requirement for custody modification is that the petitioner must show a "change of circumstances" that could warrant modification of the prior custody order. If this threshold requirement is not proven, there will be no change to the existing order. If the necessary change of circumstance is proven, the court will consider the same standard set of custody factors that is considered in setting the original order. This includes the length of time the child has lived primarily with either parent, relative nurturing ability of each parent, special needs of the child, neglect or abuse, domestic violence, extended family resources for each parent, any separation of siblings, the preference of the subject child and any interference by either parent with the other's relationship with the child.
Even if the child is relocated from the state, the state that issued the original custody order continues to have the exclusive right to hear and decide custody issued for the child, until it finds (a) that all parties have left the original state, (b) that the original state is no longer a convenient place to hold proceedings, or (c) that the child no longer has strong connections to the original state, and there is more relevant evidence available in the new state.
If you have questions about changing custody orders or would like to learn how our Long Island family lawyers can help you with modifications of child custody, call 800-483-1723 for a FREE consultation.