In re McCORMICK et al.

*407 H. L. Koontz and C. L. Shuping, Greensboro, for petitioner appellee.

Robert S. Cahoon, Greensboro, for respondent appellant.

WINBORNE, Justice.

This appeal presents one basic question: Where there is a controversy between husband and wife, living in a state of separation, without being divorced, in respect to the custody of their children, are the provisions of G.S. § 17-39 available to the parent with whom the children then reside?

The statute, G.S. § 17-39, in pertinent part provides that "When a contest shall arise on a writ of habeas corpus between any husband and wife, who are living in a state of separation, without being divorced, in respect to the custody of their children, the court or judge, on the return of such writ, may award the charge or custody of the child or children so brought before it either to the husband or to the wife, for such time, under such regulations and restrictions, and with such provisions and directions as will, in the opinion of such court or judge, best promote the interest and welfare of the children. At any time after the making of such orders the court or judge may, on good cause shown, annul, vary or modify the same * * *."

It is manifest from a reading of this statute, as interpreted and applied in decisions of this Court, that its provisions are available only in cases where the husband and wife are living in a state of separation, without being divorced, and there arises a contest between them as to the custody of their children. Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906; In Re Young, 222 N.C. 708, 24 S.E.2d 539; McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684; In Re Blake, 184 N.C. 278, 114 S.E. 294.

While the proceeding is referred to as "a habeas corpus" it seems clear that the legislature did not intend it to be "habeas corpus" in the strict meaning of the term. Rather it is set up as a proceeding in the nature of habeas corpus by which controversy between husband and wife, living in a state of separation, without being divorced, in respect to the custody of their children may be determined. Hence the Court deems it immaterial whether the respondent or the petitioner has custody at the time. It is a means of bringing the children before the Court for a determination of the controversy.

The judgment below is

Affirmed.