In Re the Custody of McCormick

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 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…