In Nicholson v. Scoppetta, 3 NY3d 357, 368 [2004] the Court of Appeals was faced with the question of whether a mother, who was a victim of domestic violence, could be found to have neglected her children simply because her children witnessed the violence. The Court held that a finding of neglect against the victim of domestic abuse would not be justified solely because the child had witnessed the violence. The Court noted that, assuming that actual harm or imminent danger to the child's mental or emotional condition had been shown, the petitioner would still have to show that the respondent failed to exercise a minimum degree of care toward the child (id. at 370). The Court ruled that, in determining whether the respondent exercised a minimum degree of care, "courts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing" (3 NY3d at 370). The Court noted that a finding against the mother might be justified where she knows that her children have witnessed repeated acts of violence but, nonetheless, she permits the perpetrator to remain in the home or repeatedly invites him back. However, Nicholson cautions that, in determining whether such mother is "neglectful," courts must consider the surrounding circumstances, including, for example, the risks the mother might face if she was to try to resist or leave the batterer; whether the perpetrator has threatened to kill her if she does; whether she is financially or otherwise dependent on the perpetrator. The Court concluded that "[w]hether" a particular mother in these circumstances has actually failed to exercise a minimum degree of care is necessarily dependent on facts such as the severity and frequency of the violence, and the resources and options available to her" (id. at 371). In other words, there must be an element of fault -- of "neglect" -- to support a finding of neglect. The Court of Appeals clarified the standard of "imminent risk" and the factors courts must weigh in making such decisions. The courts must consider whether the "children were actually or imminently harmed by reason of the parent's failure to exercise even minimal care in providing them with proper oversight," examine the "special vulnerabilities of the child," and conduct an objective evaluation of parental behavior, including whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing" Id. at 370, 372. Further, Nicholson makes clear that a court must do more than identify the existence of a risk of serious harm. In addition, a court must weigh whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal, and a court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interest. Id. at 379-80. And finally, "the term safer course' should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption." Id. at 380.