How do we keep children safe when a mother allows the man who is beating her into her home?

The answer, apparently, is: We don’t.

That’s the verdict this month from a four-judge panel of the New York state Appellate Division.

The panel ruled in favor of “Ms. W.,” a Brooklyn woman whose ex-boyfriend repeatedly slapped, beat and pulled her hair out in front of her infant daughter.

A family-court judge initially issued an order of protection barring the ex from her home, adding that she would have to consent to unannounced visits from the Administration for Children’s Services to ensure that she was keeping him away.

Ms. W. sued, claiming that since she herself had done nothing wrong, she should not be subject to surveillance by a government agency.

The higher court decided she was right. Unless the mother herself was accused of abusing or neglecting her child, they ruled, ACS could not compel her to accept any kind of check-ins.

The judges concluded that the circumstances in Ms. W.’s case “constitute precisely the type of state intervention that the Legislature sought to avoid” when it established the Family Court system.

David Shalleck-Klein of the Family Justice Law Center, which filed the suit on Ms. W.’s behalf, declared victory: “This unanimous decision puts an end across the state to this decades-long practice of conducting unbounded surveillance for months or even years on end of parents charged with no wrongdoing.”

The verdict was the culmination of a long-running campaign among journalists, attorneys and activists to ensure that mothers who are victims of domestic violence are not held responsible for what happens to their children.

In 2018, a New Yorker article described the issue as “part of a trend of criminalizing survivors of domestic violence.”

Mother Jones in 2022 decried the “classist,” “racist” “criminal-justice system that makes mothers ultra-culpable, blaming them for things that are largely outside their control.”

In a 2020 USA Today article headlined “Florida blames mothers when men batter them — then takes away their children,” a reporter objected to investigators who “criticized abused mothers and their choices,” and expressed outrage that “mothers bear the brunt of caseworkers’ scrutiny because they are typically their children’s primary caregivers.”

But what would they propose we do instead?

We can’t ask infants and toddlers to enforce orders of protection against the men who are menacing their mothers. Unsurprisingly, there is a high correlation between intimate partner violence and child abuse.

But even if we assumed that a man who beats up his girlfriend isn’t going to lay a finger on her children, what would happen to the infant if the mother was knocked out or worse?

The USA Today report itself cited a woman whose infant and toddler were removed to foster care after her ex-boyfriend (with whom she had regular contact) beat her unconscious in front of the kids. 

Can we at least agree that children who have to watch men beat their mothers senseless are experiencing a level of trauma that should not be tolerated?

It may not seem fair, but we have to hold the mother responsible in some way for this situation.

If we don’t want to prosecute her for leaving her children in dangerous situations, and we don’t want to remove the children from her custody even though they may well be at risk, sending someone from ACS to monitor the situation seems like the least we can do.

Tom Rawlings, the former head of the Georgia Division of Family & Children Services, tells me that New York has made itself an outlier with this ruling.

“Most of the legal literature says that dependency hearings should be about the needs of child, not the needs of the parent,” Rawlings said.

“If you have a child being abused, then that gives court jurisdiction,” he said, even if the custodial parent is not the one engaged in the violent behavior.

The Appellate Court’s ruling means we will now either ignore children trapped in these dangerous situations — or start charging mothers with neglect if they allow abusive men near their children in violation of protective orders.

Neither is ideal, but the safety of the children must come first. 

“I’m so glad that other families won’t have to go through what my family did,” Ms. W. said after the court’s ruling.

Sadly, thanks to this verdict, other families may have to go through something much worse.

Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute.