This is a rush transcript from "On the Record ," October 8, 2007. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, HOST: More trouble for Britney Spears.

She can expect a visit from the Los Angeles Department of the Child and Family Services thanks to a child abuse referral filed last week by her former bodyguard Tony Barretto and his attorney Gloria Allred.

Barretto worked for the pop star from March 26 until he was fired on May 17. During that time Barretto says he saw her drinking and walking around nude in front of her children.

His attorney Gloria Allred joins us from Philadelphia. Nice to see you, Gloria, on the east coast.


VAN SUSTEREN: You want to come back because we want to talk about the influence of your client on the judge's decision. Let me ask you a quick question — your client filed a declaration that I assume you prepared for him on September 17, is that right?

ALLRED: He did file a declaration.

VAN SUSTEREN: Is the content of the declaration, do you believe, to have been an important part of the judge's decision in taking the children, physical custody, away from Britney and giving them to her ex-husband Kevin?

ALLRED: He was a key witness, and the reason was his was the only declaration that we know of that was filed post her rehabilitation. And he was the only witness available at the courthouse to be called to the witness stand to be cross-examined if Britney Spears' attorneys wished to cross-examine him, which they declined to do.

VAN SUSTEREN: Here is what the judge's order said on the 17th, and this is what disturbs me. The judge's order says, and this is page seven of page nine, the reference that you have given to us since we last met on October first, and it say "Based on the evidence presented, the court finds there is habitual, frequent, and continuous use of controlled substances and alcohol by the petitioner. That's what it says, right?

ALLRED: That's exactly what it says. And, by the way, you told me last week on your show that that was not what the court said, and then I challenged you because I said I would e-mail it to you.

That is what the court said, and I asked you to apologize to me if I was right, and it looks like I was right. It's one of the few times you are wrong.

VAN SUSTEREN: All right. I will apologize that I didn't have the wording of the order. Here is where I am absolutely scandalized is that your client appeared on this show. I asked him whether or not he had ever seen him with drugs. His response, "I've seen her with alcohol, I've never with drugs."

So if the judge relied on that September 17 order on drugs based on his declaration, he was wrong, the judge was wrong, or your client was not honest. That is the first thing. Now the second thing...

ALLRED: Neither.

VAN SUSTEREN: Well, I've got the transcript right here.

The second thing is I asked about the use of alcohol, whether alcohol was being used in such a way as to be bad for the children, whether it was in front of the children, or whatever it was. And this is what your client said on this show. He said, "Well, she — you know, this wasn't a behavior that she did regularly. You asked if I had ever seen her, and I have seen her on occasion."

Now, on occasion using alcohol, and no drugs, yet that's the basis of the declaration upon which the judge made his decision to take the child away from Britney on the 17th of September.

ALLRED: Now, here is a clarification of what he said, and due to the shortness of time on your show, we didn't have a chance to clarify. What he has said is the following — I'm not saying in the declaration but what he has said publicly since is this—that he has seen her use drugs twice, not in the presence of the children. And he has described those situations. He has seen her use alcohol, and he has seen her in the presence of the children appear to be under the influence, that is appear to act in the same way that she acted when he did see her use drugs. And so that's what we're talking about.

VAN SUSTEREN: All right.

Now, the thing that also disturbed me is that the last time your client was in the presence of Britney was May 17 when he was fired. So when he made that declaration on September 17, he knew of no information about drugs or alcohol between the time of May 17 and September 17. Is that right?

ALLRED: Had not personally observed anything like that, of course, because he was not in her employ at that time.

But here is an important point, Greta. The California appellate courts have held that where it comes to parents that past conduct can be used as indicative of future conduct.

And so, and even though a person may not have seen a parent use drugs or be under the influence yesterday, or the day before, or last week, past conduct can still indicative of future conduct — of course, you take that into account.

VAN SUSTEREN: Gloria, you agree that the decision—look, I don't know what Britney's problem is. She's strange, I admit that.

But when you take a child away, and when a judge issues an order saying based on the evidence presented, the court finds there is a habitual, frequent, and continuous use of controlled substances and alcohol by the petitioner, and it is based on that testimony, a declaration that is stale, and which he has even said on this show things that I read as being contrary, I'm deeply disturbed.

I hope the judge had other information. Brittany has a lot of problems, it's obvious, but it should be based on evidence.

ALLRED: It is evidence, and his declaration was received into evidence, and, most importantly, was unchallenged and un-rebutted and not undermined by Britney's attorneys when they had an opportunity to do so.

VAN SUSTEREN: Then I'm troubled by the lawyers, because even on a dopey TV show we could get that out of them. I don't know why the lawyers for Britney didn't put him under oath.

ALLRED: I'll tell you why.


ALLRED: I can't read their minds, but, in general, as you know as an experienced lawyer yourself, you don't want somebody on the witness stand if what they might say could be more hurtful than helpful to your client.

VAN SUSTEREN: This is painfully thin. This is stale information on a TV show. I don't know what her lawyers are doing, I don't know what Britney is doing, I don't know what the judge is doing, but California does it a little differently, I guess.

ALLRED: The judge was right, I give him credit.

VAN SUSTEREN: Well, that is because he agreed with you, Gloria. Even I said the judge is right when the judge agrees with me.

Anyway, Gloria, thank you, always nice to see you. Welcome to the East Coast.

ALLRED: Thank you.

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