Credit: Illustration by Devon Bowman

Dontayvious “Tay-Tay” Greene lived with his great-grandmother Bessie Lee Lewis all his 11 years. Every morning she got him up, gave him a bath, and sent him to school, and every evening she looked forward to seeing him come through the gate. She knows she’s the best person to raise Tay-Tay.

“I might be 74 years old, but I ain’t gonna die no time soon,” says Lewis, who is retired and lives in Northeast’s River Terrace neighborhood. “I’m not paralyzed or nothing like that. I can still get around, and I got a good sense, too.”

And Tay-Tay has a good sense of who looks after him: “My grandmother is my mother,” he wrote in a September letter.

But an Aug. 31 opinion by the D.C. Court of Appeals, the District’s highest court, has made it impossible for Lewis to become Tay-Tay’s guardian—and stifled her attempts to get him back from his birth mother, who showed up at Lewis’ door in October and put the boy into a car bound for North Carolina.

The appeals decision sent legal advocates for children and grandparents alike into high alert. This ruling held that a lower court exceeded its authority in giving child custody to a nonparent, and its opponents fear it could jeopardize a huge number of stable child–grandparent relationships. More than 8,000 D.C. grandparents are the primary custodians of their grandchildren, according to the 2000 Census.

In September, a coalition of legal advocates—including incoming Ward 6 D.C. Councilmember Tommy Wells—submitted friend-of-the-court briefs opposing the appeals-court decision.

Lewis’ trouble started only when she decided to take advantage of the city’s new Grandparent Caregivers Pilot Program, which the D.C. Council passed in March with people like her and her great-grandson in mind. Lewis has lived on Social Security and a pension since she retired to raise Tay-Tay in 1996, and the average $766 a month subsidy that the program offers would help pay the bills. But it requires the applicant—a grandparent, great-grandparent, great-aunt, or great-uncle—to obtain a court order granting custody to be eligible.

As soon as Lewis learned about the program, she went to court. On Sept. 25, she filed for joint custody. Even though she had been solely responsible for the boy his whole life, she still wanted him to be able to see his mother.

“It seemed like a good idea,” says Lewis. “I love her, and I love him.”

She figured that Tay-Tay would stay in D.C. during the school year as he always had and would maybe spend part of the summer with his mother in North Carolina, as he had last year.

But it backfired. When Luvenier Lawson, Tay-Tay’s mother and Lewis’ granddaughter, received the court papers at her residence in Wilson, N.C., she repeatedly threatened Lewis over the phone.

“I’m gonna set this motherfucking house on fire,” Lawson said, according to court documents. “All y’all can kiss my ass.”

On Oct. 29, Lawson showed up at Lewis’ door. There was nothing she could do to keep Lawson from grabbing two bags of old clothes and putting the boy into the car.

Two days later, Lewis returned to court and filed an emergency motion for sole custody, but Superior Court Judge Jerry Byrd ruled that “the court does not have the authority to take custody of a child away from a parent and give it to a nonparent.” Byrd cited the appeals-court opinion as basis for dismissing both the motion and Lewis’ original request for custody.

On Nov. 15, Matt Fraidin, a UDC law faculty member, filed an emergency motion to alter Byrd’s ruling, with a series of witness statements from Tay-Tay’s friends and relatives attached.

“[Lawson] doesn’t involve herself in his health, school, or welfare,” wrote Lewis’ son Larry Lewis.

“Luvenier has neglected her children from the time they were born,” wrote Minnie Mitchell, one of Lewis’ daughters. (Lawson has another son whom Lewis raised until age 4.)

“My mom retired so she could raise Tay-Tay, so basically he is her child, she is the only mom he has ever known,” wrote Iris Holden, Lewis’ oldest daughter. She also wrote that Lawson’s boyfriend is a violent drinker who has beaten both Lawson and Tay-Tay, and that when Tay-Tay returned from his first trip to North Carolina last year he said he didn’t want to go back. Holden also testified that Lawson is receiving federal housing vouchers for parents by having Tay-Tay with her.

Lawson, reached by telephone, denies that she is neglectful, that she or her boyfriend are abusive, and that Tay-Tay doesn’t want to live in North Carolina. And she denies any nefarious motive for taking him there: “I don’t get public assistance; I don’t get food stamps; I don’t get Section 8 [housing vouchers]; I don’t get none of that,” she says. “Everything I have, I work for.”

Fraidin doesn’t think Lawson is the person to be raising Tay-Tay. He heard about the case from friends at court who knew he was fighting the appeals-court decision. For Fraidin and others, Lewis’ story proves that the ruling is causing the bad consequences they feared.

“It means kids like Dontayvious can’t be protected by their caretakers,” Fraidin says. “Child after child after child is going to be put at risk in the same way Dontayvious has been put at risk.”

Because of the way the appeals decision is being interpreted, at least by Judge Byrd in Lewis’ case, grandparents don’t have legal standing to file for custody, which could mean the end of the subsidy program, Fraidin says.

The Consortium for Child Welfare—a coalition of 22 nonprofits—joined Fraidin in opposing the appeals decision, arguing that it “significantly impacts the clients they serve by limiting, if not eliminating, the ability of relatives and other caregivers to obtain custody of children,” in a Sept. 14 motion to get involved in the case. In their opposing brief, they point to the grandparent-subsidy program itself as evidence that the D.C. Council never intended for it to be impossible for grandparents to obtain custody.

Wells, who in addition to being a D.C. councilmember-elect is executive director of the Consortium for Child Welfare, thinks the lawyers may be able to beat back the appeals decision.

But if the Court of Appeals upholds its decision, Wells says he will come up with a legislative fix when he takes his seat on the council next month. His solution would make it easier for grandparents to have standing to file for custody based on how long a child has lived with them.

Not everybody is upset with the ruling. The Legal Aid Society, a nonprofit that provides assistance to the poor in family-law cases, among other areas, filed a brief supporting the parents-only decision.

“There are very difficult cases that arise on both sides of this issue,” says Legal Aid attorney Barbara McDowell. She points to just such a case where a mother was “erroneously accused of neglect.”

Legal Aid’s position is that “a parent’s relationship with his or her child is constitutionally protected,” and the D.C. Council has never made a provision for nonparents to sue for custody outside of the abuse and neglect system.

McDowell says, however, that Legal Aid would be “open” to some kind of legislative fix to the problem.

The question is which option—grandparents-allowed or parents-only—would be the best for kids, says Bob Guttman, a volunteer on the executive council of the AARP, which favors allowing grandparent custody. “There are always problems, and you try to pick the one that causes the fewest,” Guttman says. “This is a bunch of well-meaning folk seeing different cases as most likely.”

The two parties arguing over Tay-Tay certainly see different cases.

Lawson says it’s Lewis who wants to make money off the kid. She says that when Tay-Tay’s great-grandma took him to North Carolina last year, none of this came up, and that it’s only happening now because of the new subsidy program. She says the boy is happy and that his teacher says he’s doing well in school.

“Is there a way I can divorce my family? I don’t trust them,” she says. “They are very sneaky and conniving.”

For her part, Lewis may never have a chance to give her side of the story to a judge. “It’s so sad,” she says, staring at two backpacks full of Tay-Tay’s books and school supplies still in her living room. “I miss my baby.”