OPINION
T1 Kristiе Marchand (Mother) appeals the trial court's award of custody of her daughter (Daughter), to her ex-husband, Matthew Marchand (Father). She also argues that the trial court erred by denying her motion for a new trial and that her trial counsel was ineffective. Wе affirm.
BACKGROUND
T2 Mother and Father were married from June 1999 to January 2001. The parties divorce took place shortly after Daughter was born, and Mother was awarded custody. Father exercised visitation with Daughter after the divorce, although Mother's relocation to Arizona affected the frequency of those visits. Father eventually filed a petition seeking custody of Daughter, contending that Mother's boyfriend was emotionally abusive to Daughter and that Mother's frequent changes of residence created instability in thе child's life. In a bifurcated proceeding, the trial court first determined that Father had demonstrated a material and substantial change in circumstances since the divorce decree. Then, after a three-day trial, the trial court awarded custody to Father, entering detailed findings supporting its conclusion that placement with Father was in the best interest of Daughter. Mother then filed a motion for a new trial, which the trial court denied.
T3 After being served with Father's petition to modify the custody decree, Mother аllegedly paid her former boyfriend, Steve Burton, to take a paternity test to determine if he was Daughter's biological father.
ISSUES AND STANDARD OF REVIEW
{4 Mother challenges the trial court's decision to award custody of Daughter to Father. "Proper adjudication of custody matters is highly dependent upon personal equations which the trial cоurt is in an advantaged position to appraise." Maughan v. Maughan,
T5 Mother also appeals the trial court's denial of her motion for a new trial. "A trial court has discretion in determining whether to grant or deny a motion for a new trial, and we will not reverse a trial court's decision absent clear abuse of that discre
T6 Finally, Mother argues that her trial attorney rendered ineffective assistance. "When the question of trial counsel ineffece-tiveness is raised for the first time on appeal and оur review is confined to the trial court record, we determine, as a matter of law, whether defense counsel's performance constituted ineffective counsel." State v. Ellifritz,
ANALYSIS
I. Mother's Challenge to the Custody Award
A. Parental Presumption
T7 On appeal, Mother first argues that the trial court erred by not taking into account the "parental presumption" in awarding custody to Father. "In a controversy over custody, the paramount consideration is the best interest of the child, but where one party to the controversy is a nonparent, there is a presumptiоn in favor of the natural parent." Hutchison v. Hutchison,
recognizes the natural right and authority of the parent to the child's custody. It is rooted in the common experience of mankind, which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child's benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and lоve of the child than anyone else.
Id. (alterations, quotations, and citations omitted). The parental presumption can be rebutted only by establishing that a parent
lacks all three of the characteristics that give rise to the presumption: that nо strong mutual bond exists, that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child's, and that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally.
Id. at Al. If the рarental presumption is rebutted, then the parties competing for custody stand on "equal footing," and custody is determined by examining factors relating to the best interest of the child. Id. Mother claims that she and Burton are the biological parents of Daughtеr and, therefore, she was entitled to the application of the parental presumption against Father in determining custody. We disagree.
T8 After reviewing the record in this case, we conclude that Mother failed to raise the parental presumption in the trial court. "As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptionаl cireumstances." State v. Brown,
T9 Mother's failure to preserve this issue is demonstrated by the trial court's comments in the hearing on Mother's motion for а new trial:
That matter [of paternity] was brought up and it was my memory that after it was brought up that there [were] no results of that test that were introduced into evidence and it kind of just stopped at that point and I asked, are people going to make an issue of this and it was my understanding that there wasn't an issue that was made of that.
Indeed, the record demonstrates several opportunities when Mother could have introduced the paternity test results and could have argued that the parental presumption
B. Presumption of Paternity
T10 The second reason Mother's argumеnt fails is that Father and Mother, not Burton and Mother, are entitled to the parental presumption relating to Daughter. Father is the presumed father of Daughter because Daughter was born during the parties' marriage. See Utah Code Ann. § 78-45g-204(1)(a) (Supp.2006) ("A man is presumеd to be the father of a child i#f ... he and the mother of the child are married to each other and the child is born during the marriage...."); Pearson v. Pearson,
II. Motion for a New Trial
{11 Mother's next argument on appeal is that the triаl court erred by failing to grant her motion for a new trial. Mother argued in her motion for a new trial that because the parental presumption had not been applied at trial, an error of law occurred, see Utah R. Civ. P. 59(a)(T), there was insufficient evidence to justify the decision, see id. 59(a)(6), and the decision was "against law," id.
III. Ineffective Assistance of Counsel
§{12 Finally, Mother argues that a new trial should be granted because her attorney rendered ineffective assistance of counsel.
The general rule is that in civil cases a new trial will not be granted based upon the incompetence or negligence of one's own trial counsel. There are cases which recognize that under exigent or exceptional cireumstances which appear to have resulted in an injustice, the court may be justified in granting a new trial.
Jennings v. Stoker,
{13 Mother's trial counsel could reasonably have concluded that an attack on Father's paternity, brought for the first time more than three years after Daughter's birth, would not be permitted. See In re J.W.F.,
CONCLUSION
{ 14 The trial court did not err in failing to consider the parental presumption because thе theory was not raised at trial and, furthermore, Father is the presumed natural father of Daughter. The trial court also did not abuse its discretion in denying Mother's motion for a new trial because it set forth adequate grounds for the denial. Finally, even assuming negligencе of counsel could serve as a basis for a new trial in a custody case, we decline to second-guess trial counsel's strategic decisions. Affirmed.
[ 15 WE CONCUR: PAMELA T. GREENWOOD, Associate Presiding Judge and JUDITH M. BILLINGS, Judge.
Notes
. Mother immediately informed Daughter that Burton was her "real" father and arrаnged for him to have contact with her.
. The presumption may also be rebutted by "genetic test results that exclude the presumed father," "evidence that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercоurse with each other during the probable time of conception," or "an adjudication under [Utah Code sections 78-45g-601 to -623]." Viah Code Ann. § 78-45g-607(3)(a)-(d) (Supp.2006). No such evidence was offered at trial.
. Both Mother and Father had different counsel than their trial counsel at the time the motion for a new trial was filed.