The petitioner stressfully contends that the father, being a fit and suitable person, has sole right to the custody of his child “as a rule of law,” and that therefore a controversy respecting the child’s custody such as would confer jurisdiction upon the juvenile court cannot arise in the absence of proof of abandonment or other special fact not here appearing.
This position cannot be sustained. The right of petitioner to the custody of his child is not at issue on this appeal. The sole question is one of procedure which, on this record, is jurisdictional. Furthermore, the contention is made in the middle of a controversy in respect to the custody of said infant. The cause of petitioner may be just and the contention of respondents may be unfounded and unwarranted—nonetheless, there is a controversy. Otherwise there would be no need to seek the aid of the courts.
We have four separate statutory provisions respecting the manner of determining the right to the custody of an infant when custody is the only question at issue. G.S. 17-39, G.S. 50-13, and G.S. 110-21 (3). Any apparent conflict or inconsistency in the provisions of these statutes has been reconciled and harmonized in former decisions of this Court.
The provisions of the first two, G.S. 17-39 and G.S. 50-13, may be invoked only in cases where the custody of a child is the subject of controversy between its parents.
When the parents are living in a state of separation without being divorced a controversy between them over the custody of a child born of the marriage may be adjudicated under a writ of
habeas corpus.
G.S. 17-39;
In re Blake,
So soon as the “state of separation” between husband and wife resolves itself into, brings about, or is followed by an action for divorce in which a complaint has been filed, the jurisdiction of the court acquired under a writ of
habeas corpus
as provided by G.S. 17-39 is ousted and authority to provide for the custody of the children of the marriage vests in the court in which the divorce proceeding is pending.
Robbins v. Robbins, ante,
430;
In re Blake, supra; McEachern v. McEachern, supra; In re Albertson, supra; Tyner v. Tyner,
When, however, the parents were divorced outside this State, either parent may have the question of custody as between them determined in a special proceeding in the Superior Court. G.S. 50-13.
In all other instances in which the custody of an infant less than sixteen years of age is the subject of the controversy, the juvenile branch of the Superior Court of the county where the child resides or is to be found has exclusive original jurisdiction. G.S. 110-21 (3);
In re Thompson,
It is to be noted that the exceptions include only cases in which the controversy is between the parents of the infant. In such cases the family relations are involved and each party has some natural as well as legal claim to the child. The child itself is under the protective custody of the court which exercises its sound discretion in providing for its welfare. For these reasons, perhaps, the Legislature, in adopting General Statutes, Chap. 110, Art. 2, saw fit to leave G.S. 17-39 and G.S. 50-13 unimpaired so that the authority to exercise this discretion would remain in the Superior Court judge rather than be vested in an inferior judicial official. In any event, we have so construed the statutes.
*633 It follows that the court below correctly concluded that it was without jurisdiction to hear the matter either as upon a writ of habeas corpus or as a motion in the divorce action theretofore pending in Wilkes County.
The cases cited and relied on by petitioner are not in conflict with the conclusion here reached. In the
TenHoopen case,
The judgment entered in the court below was in accord with the decisions of this Court and is
Affirmed.