How will the new Virginia marijuana laws impact my custody case?

Written on July 01, 2021

As of July 1, 2021 it is legal for adults to possess up to 1 oz of marijuana in Virginia. Many are excited about this change in the law; however, it does come with a few caveats. As with most new laws there are a lot of questions about how this will impact our day to day lives and, for those with ongoing custody and visitation cases, how this will impact those cases.

Frequently in custody and visitation cases parents will make allegations against each other regarding drug use, alcohol abuse, and several other bad acts. Most drug abuse allegations concern marijuana usage; and, in the past, the court’s response to these allegations was to order one party to undergo a drug test. But, with the legalization of marijuana imminent, how courts address these allegations will be changing. Since recreational marijuana use has never been legal in Virginia before, there is no controlling authority that we can rely on—we can always look to other states for persuasive authority; but, there may be a better option.

It is likely that the court’s stance on adult marijuana usage will closely mirror that of adult alcohol usage.

First, the court will likely look to if the usage negatively impacts normal responsibilities. For example, are there multiple driving while under the influence, loss of job, extraordinary spending on marijuana, or some other factor that has a serious negative impact.

Second, the court will look to see if the usage impacts the care of the children. As with alcohol, the court will likely look to instances when one parent was unable to properly care for the children due to marijuana usage. For example, unable to pick the children up from school or event, unable to transport the children in an instance of a medical emergency, or some accident occurring that should have been avoided. As has been pointed out, the money that is spent on drugs or alcohol could be better used on the children.

Finally, the court will look at any instances of the parent driving while intoxicated with the children in the car. This is a very big factor for the court and can result in pretty extreme decision from the court if the other parent is able to prove that the parent was driving while intoxicated.


These are just few examples of what the court will look at when allegations of marijuana abuse are presented. It is very likely that the court will hear less allegations of marijuana abuse after it is fully legalized.


Substance abuse is just one factor of what the court will look at when deciding what is in the best interest of the children pursuant to Virginia Code 20-124.3. When going through any custody or visitation case is important to understand all of your rights. The experienced attorneys at Melone Hatley can help with your custody case. Contact our office in Reston at 703-995-9900 and Virginia Beach 757-296-0580, or schedule an appointment online.


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