This is a rush transcript from "On the Record ," October 5, 2007. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, HOST: The judge in the mega pop star Britney Spears custody battle ordered her not to drink alcohol or take nonprescription drugs within 12 hours of seeing her children. But what about the rest of the time?
Family attorney Don Schweitzer joins us in Los Angeles.
Don, I've been stuck on this for two nights, having looked at this order, which says you can't use nonprescription drugs — which I presume means not over-the-counter drugs but cocaine or something else — 12 hours before. Is this an unusual order? Because the rest of us think you're never supposed to use it. Why does the judge have to put that in the order and sort of give her a pass, It's OK to do it outside that window?
DON SCHWEITZER, FAMILY LAW ATTORNEY: Greta, it's not unusual when you take into consideration California law regarding the court's limited ability to order drug testing (INAUDIBLE) use positive tests in custody evaluations. The court in California cannot use a positive test of drug use in and of itself to make a custody determination, but what a court can do is say that if you use drugs at or near the time that you're in care of your children, that's a significant factor of taking visitation away from you.
So the court was very careful in the way that it worded this order so that Britney Spears knew for a fact that if she took those drugs at the time that she had custody of the kids that she would be in trouble.
VAN SUSTEREN: So she — so I take it the judge would say, then, you can't use drugs, illegal drugs or nonprescription drugs, other times, but that it was fashioned this way for that specific purpose alone.
SCHWEITZER: Yes, and I think it would be fair to say that in California, family court really has limited jurisdiction in telling people what drugs they can use and what they can do on their own time. A case called Wainwright (ph), which was by the California supreme court, made it real clear that family courts have limited jurisdiction, unlike criminal courts, so they don't have the ability of telling people, Hey, you know, you can't do things, you know, at your own time. But when you're with children, then that's a different story.
VAN SUSTEREN: All right. Don, it seems that this decision by this judge was made on the basis of three hearings, on September 17, October 3 and October 5. Do you know if he heard from any witnesses, or is he simply hearing from either of the parties that may have shown up? I know she didn't show up, but — what's the basis for this opinion?
SCHWEITZER: I can't imagine this court making such a drastic change in custody without it having heard from some witnesses and having some really hard evidence.
VAN SUSTEREN: But you don't know it? But I mean, you can't help us out. You can't help us out.
SCHWEITZER: No. I can tell you this, though, looking at the minute order and reading Commissioner Gordon's (ph) statements, that he had to have learned of something that was drastic in order to make the change.
VAN SUSTEREN: Or otherwise, he's out of his mind, but we assume he's not out of his mind, right?
SCHWEITZER: That's right. And he's protecting the privacy of these parties, and so it's a little hard for us in the public to really determine what's happening there because he's respecting their privacy in a lot of ways. In the order, he talks about "my prior orders." He doesn't specify what those orders were.
VAN SUSTEREN: All right. Now, Gloria Allred, who is very familiar to our television audience — maybe you even know Gloria up there...
VAN SUSTEREN: Everybody knows Gloria, I guess. She represents a client who is a bodyguard who worked — he's a former bodyguard, worked for Britney from March until May 17. And he's not seen her since, has no information since May 17. Would it be inappropriate or appropriate in making a custody order now for this judge to consider his declaration when it is stale in time, or ancient?
SCHWEITZER: Greta, I think that you know that a court has to weigh all the evidence, and it just depends on how much weight he's going to put on this gentleman's declaration. I would argue that, you know, it is remote and the court shouldn't consider it greatly, but it has to consider the evidence. This court has to consider all the evidence presented and make some determination. So it's not irrelevant.
VAN SUSTEREN: I would — you know what? I would think it's almost silly because he didn't even come into court. Now, no one asked him to come into court, but he basically signed a piece of paper, Gloria filed it, and...
SCHWEITZER: Let me explain this to you, Greta.
VAN SUSTEREN: OK.
SCHWEITZER: Let me explain that to you. In California, we have what's called "riflerized decisions," or "regularized declarations." The court can make rulings based on declarations during these pendente lite hearings. Other than a trial...
VAN SUSTEREN: Even a — even something that is four months old, that hasn't been cross-examined, that would be OK in your mind, to be...
SCHWEITZER: Not in my mind. Not in my mind.
VAN SUSTEREN: OK. All right . I want you...
SCHWEITZER: I've got some problems with the system. But I'm telling you that's how it works in California.
VAN SUSTEREN: All right. Well — all right. Go ahead.
SCHWEITZER: In California, our family courts are so congested that the supreme court has allowed trial courts to make significant rulings based on declarations.
VAN SUSTEREN: You know...
SCHWEITZER: A lot of us think that's wrong, and particularly in something like this, when there's a change of custody that's so dramatic.
VAN SUSTEREN: And I agree with you. So court congestion allows for something the rest of us think is probably not right, just sort of like your jails are overcrowded and your sheriffs make decisions on who can get out when (INAUDIBLE) You got an interesting system out there, Don.
SCHWEITZER: Don't blame me for the system, Greta. I just operate in it.
VAN SUSTEREN: I won't. I understand totally. I understand. Thank you, Don.
SCHWEITZER: Thank you.
Content and Programming Copyright 2007 FOX News Network, LLC. ALL RIGHTS RESERVED. Transcription Copyright 2007 Voxant, Inc. (www.voxant.com), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, LLC'S and Voxant, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.