Virginia Changes Custody Law to Generally Allow Parents to Use Cannabis Without Losing Visitation or Custody

Posted by Wesley D. WornomMay 18, 20260 Comments

The 2026 Virginia Legislature passed a law that allows a parent aged 21 or more, to use cannabis without a negative effect on custody or visitation, unless a party can establish other facts that such possession or consumption is not in the best interest of the child.

Prior to this change in the law, some courts and GALS viewed the use of cannabis as a negative factor in custody and visitation cases, even after cannabis use was legalized in Virginia for persons age 21 or more. Likewise, some GALs & courts viewed the use of prescribed pharmaceuticals, such as ADHD medications, benzodiazepines, opioid pain management, or Suboxone, etc., as negative factors. The changes forbid the use of cannabis or any other lawfully prescribed drugs from being used as the sole predicate to limit or strip parenting time. However, in any case, if a party can establish that such possession or consumption is not in the best interest of the child, it will be viewed negatively. The new provisions do not provide any further guidance.  

Parents are advised to watch their use of all legal drugs whenever they are with their minor children. Impairment from alcohol or using drugs, while providing care, might well be determined to be against the best interest of minor children. The practical effect of the changes in the law is to make it difficult to establish that legal drug use is against the best interests of children, because the only witnesses might often be the party using such drugs and the children. Since children are rarely put on the stand, or interviewed by the court, and the guilty party is unlikely to admit such use, the new law might have the effect of insulating legal use of legal drugs by a parent. Previously, a positive drug test for cannabis could be treated as a negative factor. 

Section 16.1-278.15(l) (drug testing subsection) and Section 20-124.2(B) were amended to include this language: "A person's legal possession or consumption of substances authorized under Title 4.1 or Chapter 34 ( Sections 54.1-3400 et.seq.) of Title 54.1 alone shall not serve as a basis to restrict custody or visitation unless other facts establish that such possession or consumption is not in the best interests of the child."

About the Author

Wesley D. Wornom
Wesley D. Wornom

**Wesley D. Wornom, PC: Dedicated Family Law Advocacy in Stafford, Virginia** With 45 years of legal experience and 33 years specializing in family law, Wesley D. Wornom, PC, delivers exceptional representation in Stafford, Virginia. As a solo practitioner for 32 years, Wesley prefers a small firm model, emphasizing one-on-one client relationships to provide personalized, attentive service. Each case benefits from his direct involvement, ensuring tailored solutions with compassion and expertise. Visit www.staffordlawyer.com to learn how he can support you through complex family law matters. Wesley D. Wornom’s 45 years of experience, including 29 years specifically in Stafford County, ensures expert, tailored representation for military and federal employees navigating complex family law issues like divorce and custody. Wesley’s academic achievements underscore his intellectual rigor. He graduated fifth in his class at the College of William and Mary, working full-time during his final two years. At the University of Virginia School of Law, a top 10 institution, he ranked in the top fifth of his class. A Mensa member, Wesley’s analytical prowess allows him to address intricate legal challenges with clarity and innovation, particularly in family law cases like divorce, custody, support, and property division. Before establishing his solo practice in 1992, Wesley gained diverse experience in prestigious settings. He practiced at law firms in Los Angeles from 1980 to 1983 and Washington, D.C., from 1983 to 1985, followed by a role at Marriott Corporation from 1985 to 1991. This background equips him with a unique blend of corporate and legal insight, enhancing his family law practice. Notably, Wesley has extensive experience with military divorces, military retirement, and federal employee retirement issues, making him a trusted advocate for service members and federal workers navigating these specialized matters. Wesley’s small firm ensures direct, trusting communication with clients. With 33 years of family law expertise, he excels in negotiations and litigation, securing favorable outcomes with a focus on individual needs. For those in Stafford facing family law challenges, Wesley D. Wornom, PC, offers unparalleled dedication. Visit www.staffordlawyer.com to schedule a consultation and experience his 45 years of legal excellence.

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