Opinion by
Justice JOHNSTONEconcurring in part and dissenting in part.
To the extent the majority affirms the Court of Appeals’ decision that the trial court clearly erred in finding that David Sorrell “waived” his superior right to custody, I concur. The finding simply was not supported by clear and convincing evidence. Accordingly, the trial court incorrectly relied on David’s “waiver” as a basis to utilize the “best interest of the child” standard to determine custody as between the father and the maternal grandparents.
However, I respectfully disagree with the majority inasmuch as it affirms the Court of Appeals’ decision to remand this case to the trial court directing “further proceedings ... including an award of custody to David, visitation rights to Pamela, and child support from Pamela to David.” Op. at 467.
As the majority points out, when a non-parent does not meet the statutory standard of a de facto custodian, in order to defeat a parent’s superior right or entitlement to custody, the non-parent must prove by clear and convincing evidence that the parent is “unfit” or has “waived” his or her superior custody rights. See Moore v. Asente, Ky., 110 S.W.3d 336, 359 (2003). Under the unfitness exception, “the nonparent must first show by clear and convincing evidence that the parent has engaged in conduct similar to activity that could result in the termination of parental rights by the state. Only after making such a threshold showing would the court determine custody in accordance with the child’s best interest.” Moore, 110 S.W.3d at 360. In the present case, the Vinsons allege that David is unfit to have custody of S.V.
*472Citing CR 52.04, Eiland v. Ferrell, Ky., 937 S.W.2d 713 (1997), and Jones v. Jones, Ky.App., 577 S.W.2d 43 (1979), the majority concludes that further consideration of the unfitness issue is prohibited. Under the facts and circumstances of this case, I disagree. In Eiland, a party was precluded from appeal due to an untimely objection to a monetary award. In Jones, the unsuccessful mother attempted to appeal a custody award without having sought more definite reasons for the custody ruling. In the cited cases, it was the unsuccessful litigants below that were required to seek more exacting findings from the trial court. It seems that to require successful litigants, such as the Vinsons, who were awarded custody by the trial court, to seek additional findings regarding the unfitness of the father when they prevailed on the waiver issue in the trial court invites judicial waste. The majority’s assumption that there was insufficient evidence of unfitness or that the Vinsons abandoned the claim is unfounded. At the trial court level, it was determined that “[Pamela’s] verified and continued alcohol and drug problems along with her other difficulties as outlined above [including 4-5 felony drug convictions, manic depression, bi-polar disorder, and a substantiated incident of child neglect regarding S.V.] are the basis for the compelled finding that she is unfit and not suitable for the trust of being the custodial parent of [S.V.].” The trial court further found that David admitted to serving time for trafficking in cocaine, that there was uncontroverted evidence of domestic violence between David and S.V.’s mother, Pamela, when they lived together, and that there was a recent episode of domestic violence between David and his current girlfriend with whom he shares a home to which he intends to move S.V.
When, as in the present case, there exists a legitimate question as to the fitness of a parent seeking custody, the court has an obligation to consider the issue in determining custody. The court has a role in protecting the welfare of this child.
For the reasons stated, I would remand this case to the trial court for further consideration of all relevant factors and circumstances as they presently exist and for a determination on the custody issue consistent with the principles set forth in this opinion. If the trial court is persuaded by clear and convincing evidence that David is unfit and not suited to the trust, then custody may be decided on what is in the child’s best interest. Absent a determination that David is unfit, his superior right to custody should prevail.
STUMBO, J„ joins.